SUBSCRIPTION AGREEMENT
Exhibit 10.1
SUBSCRIPTION AGREEMENT made as of this
_____
day of
________________, 2009, between Genesis Fluid
Solutions Holdings, Inc., a Delaware corporation (the “Company”), and the undersigned (the
“Subscriber”).
WHEREAS, pursuant to a Confidential Private Placement Memorandum dated June
_____, 2009 (the
“PPM”), the Company is offering in a private placement (the “Offering”) to accredited investors a
minimum of 64 Units (the “Minimum Offering”) and a maximum of 160 Units (the “Maximum Offering”) at
a purchase price of $25,000 per Unit, with each Unit (the “Units”) consisting of 25,000 shares of
the Company’s common stock, par value $0.001 per share (the “Common Stock”), and a two-year
detachable warrant (the “Warrant”) to purchase 12,500 shares of Common Stock with an exercise price
of $4.00 per share; and
WHEREAS, the Subscriber desires to subscribe for the number of Units set forth on the
signature page hereof, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter
set forth, the parties hereto do hereby agree as follows:
I. SUBSCRIPTION FOR AND REPRESENTATIONS AND COVENANTS OF SUBSCRIBER
1.1 Subject to the terms and conditions hereinafter set forth, the Subscriber hereby
subscribes for and agrees to purchase from the Company such number of Units set forth upon the
signature page hereof, at a price equal to $25,000 per Unit, and the Company agrees to sell such to
the Subscriber for said purchase price, subject to the Company’s right to sell to the Subscriber
such lesser number of (or no) Units as the Company may, in its sole discretion, deem necessary or
desirable. The purchase price is payable by wire transfer of immediately available funds, pursuant
to the wire instructions attached as Exhibit F to the PPM or by check payable to Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP, as escrow agent for Genesis Fluid Solutions Holdings, Inc.
1.2 The Subscriber recognizes that the purchase of Units involves a high degree of risk in
that (i) an investment in the Company is highly speculative and only investors who can afford the
loss of their entire investment should consider investing in the Company and the Units; (ii) the
Units are not registered under the Securities Act of 1933, as amended (the “Act”), or any state
securities law; (iii) there is no trading market for the Units, none is likely ever to develop, and
the Subscriber may not be able to liquidate his, her or its investment; (iv) transferability of the
Units is extremely limited; and (v) an investor could suffer the loss of his, her or its entire
investment.
1.3 The Subscriber is an “accredited investor,” as such term in defined in Rule 501 of
Regulation D promulgated under the Act, and the Subscriber is able to bear the economic risk of an
investment in the Units.
1.4 The Subscriber has prior investment experience (including investment in non-listed and
non-registered securities), and has read and evaluated, or has employed the
services of an
investment advisor, attorney or accountant to read and evaluate, all of the documents furnished or
made available by the Company to the Subscriber and to all other prospective investors in the
Units, including the PPM, as well as the merits and risks of such an investment by the Subscriber.
The Subscriber’s overall commitment to investments which are not readily marketable is not
disproportionate to the Subscriber’s net worth, and the Subscriber’s investment in the Units will
not cause such overall commitment to become excessive. The Subscriber, if an individual, has
adequate means of providing for his or her current needs and personal and family contingencies and
has no need for liquidity in his or her investment in the Units. The Subscriber is financially
able to bear the economic risk of this investment, including the ability to afford holding the
Units for an indefinite period or a complete loss of this investment.
1.5 The Subscriber acknowledges receipt and careful review of the PPM, all supplements to the
PPM, and all other documents furnished in connection with this transaction by the Company,
including but not limited to the exhibits to the PPM (collectively, the “Offering Documents”), and
has been furnished by the Company during the course of this transaction with all information
regarding the Company which the Subscriber has requested or desires to know; and the Subscriber has
been afforded the opportunity to ask questions of and receive answers from duly authorized officers
or other representatives of the Company concerning the terms and conditions of the Offering, and
any additional information which the Subscriber has requested.
1.6 The Subscriber acknowledges that the purchase of the Units may involve tax consequences to
the Subscriber and that the contents of the Offering Documents do not contain tax advice. The
Subscriber acknowledges that the Subscriber must retain his, her or its own professional advisors
to evaluate the tax and other consequences to the Subscriber of an investment in the Units. The
Subscriber acknowledges that it is the responsibility of the Subscriber to determine the
appropriateness and the merits of a corporate entity to own the Subscriber’s Units and the
corporate structure of such entity.
1.7 The Subscriber acknowledges that this Offering has not been reviewed by the Securities and
Exchange Commission (the “SEC”) or any state securities commission, and that no federal or state
agency has made any finding or determination regarding the fairness or merits of the Offering. The
Subscriber represents that the Units are being purchased for his, her or its own account, for
investment only, and not with a view toward distribution or resale to others. The Subscriber
agrees that he, she or it will not sell or otherwise transfer the Units unless they are registered
under the Act or unless an exemption from such registration is available.
1.8 The Subscriber understands that the provisions of Rule 144 under the Act are not available
for at least one (1) year to permit resales of the Units or the Common Stock and Warrants
comprising the Units and there can be no assurance that the conditions necessary to
permit such sales under Rule 144 will ever be satisfied. The Subscriber understands that the
Company is under no obligation to comply with the conditions of Rule 144 or take any other action
necessary in order to make available any exemption from registration for the sale of the Units or
the Common Stock and Warrants comprising the Units.
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1.9 The Subscriber understands that the Units have not been registered under the Act by reason
of a claimed exemption under the provisions of the Act which depends, in part, upon his, her or its
investment intention. In this connection, the Subscriber understands that it is the position of
the SEC that the statutory basis for such exemption would not be present if his, her or its
representation merely meant that his, her or its present intention was to hold such securities for
a short period, such as the capital gains period of tax statutes, for a deferred sale, for a market
rise, assuming that a market develops, or for any other fixed period. The Subscriber realizes
that, in the view of the SEC, a purchase now with an intent to resell would represent a purchase
with an intent inconsistent with his, her or its representation to the Company and the SEC might
regard such a sale or disposition as a deferred sale, for which such exemption is not available.
1.10 The Subscriber agrees to indemnify and hold the Company, its directors, officers and
controlling persons and their respective heirs, representatives, successors and assigns harmless
against all liabilities, costs and expenses incurred by them as a result of any misrepresentation
made by the Subscriber contained herein or any sale or distribution by the Subscriber in violation
of the Act (including, without limitation, the rules promulgated thereunder), any state securities
laws, or the Company’s Certificate of Incorporation or By-laws, as amended from time to time.
1.11 The Subscriber consents to the placement of a legend on any certificate or other document
evidencing the Common Stock or the Warrants stating that such securities have not been registered
under the Act and setting forth or referring to the restrictions on transferability and sale
thereof.
1.12 The Subscriber understands that the Company will review and rely on this Subscription
Agreement without making any independent investigation; and it is agreed that the Company reserves
the unrestricted right to reject or limit any subscription and to withdraw the Offering at any
time.
1.13 The Subscriber hereby represents that the address of the Subscriber furnished at the end
of this Subscription Agreement is the undersigned’s principal residence, if the Subscriber is an
individual, or its principal business address if it is a corporation or other entity.
1.14 The Subscriber acknowledges that if the Subscriber is a Registered Representative of a
Financial Industry Regulatory Authority, Inc. (“FINRA”) member firm, the Subscriber must give such
firm the notice required by the FINRA’s Conduct Rules, receipt of which must be acknowledged by
such firm on the signature page hereof.
1.15 The Subscriber hereby acknowledges that neither the Company nor any persons associated
with the Company who may provide assistance or advice in connection with the Offering (other than
the placement agent, if one is engaged by the Company) are or are
expected to be members or associated persons of members of the FINRA or registered
broker-dealers under any federal or state securities laws.
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1.16 The Subscriber understands that, pursuant to the terms of the Offering as set forth in
the PPM, the Company must receive subscriptions for 64 Units for an aggregate
purchase price of
$1,600,000 in order to close on the sale of any Units and that persons affiliated with the Company
or its consultants, advisors, or placement agents may subscribe for Units, in which case the
Company may accept subscriptions from such affiliated parties in order to reach the Minimum
Offering; and that, accordingly, no investor should conclude that achieving the Minimum Offering is
the result of any independent assessment of the merits or advantages of the Offering or the Company
made by Subscribers in the Minimum Offering.
1.17 The Subscriber hereby represents that, except as expressly set forth in the Offering
Documents, no representations or warranties have been made to the Subscriber by the Company or any
agent, employee or affiliate of the Company and, in entering into this transaction, the Subscriber
is not relying on any information other than that contained in the Offering Documents and the
results of independent investigation by the Subscriber.
1.18 The Subscriber hereby represents that all information provided by the Subscriber in the
Investor Questionnaire attached as Exhibit B to the PPM is true and accurate in all
respects, and the Subscriber acknowledges that the Company will be relying on such information to
its possible detriment in deciding whether the Company can sell these securities to the Subscriber
without giving rise to the loss of the exemption from registration under applicable securities
laws.
1.19 The Subscriber hereby acknowledges and agrees that, except for Subscriber signing the
Reconfirmation of Subscription attached as Exhibit E to the PPM, once the Minimum Offering
amount is received by the Company, no further approval will be required for the Company to
consummate the Initial Closing.
1.20 The Subscriber agrees, pursuant to the terms of the Escrow Agreement, jointly and
severally with the other subscribers in the Offering and the Company, to indemnify and hold
harmless the escrow agent and its partners, employees, agents and representatives from any and all
claims, liabilities, costs or expenses in any way arising from or relating to the duties or
performance of the escrow agent under the Escrow Agreement or the transactions contemplated thereby
or hereby other than any such claim, liability, cost or expense to the extent the same shall have
been determined by final, unappealable judgment of a court of competent jurisdiction to have
resulted from the gross negligence, fraud or willful misconduct of the escrow agent.
II. REPRESENTATIONS BY THE COMPANY
(a) The Company is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware and has the corporate power to conduct the business which
it conducts and proposes to conduct.
(b) The execution, delivery and performance of this Subscription Agreement by the Company have
been duly authorized by the Company and all other corporate
action required to authorize and consummate the offer and sale of the Units has been duly
taken and approved.
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(c) The Units and the underlying Common Stock have been duly and validly authorized and will
be duly and validly issued at closing of the Offering.
(d) The Company has obtained, or is in the process of obtaining, all licenses, permits and
other governmental authorizations necessary for the conduct of its business, except where the
failure to so obtain such licenses, permits and authorizations would not have a material adverse
effect on the Company. Such licenses, permits and other governmental authorizations which have been
obtained are in full force and effect, except where the failure to be so would not have a material
adverse effect on the Company, and the Company is in all material respects complying therewith.
(e) The Company knows of no pending or threatened legal or governmental proceedings to which
the Company is a party which would materially adversely affect the business, financial condition or
operations of the Company.
(f) The Company is not in violation of or default under, nor will the execution and delivery
of this Subscription Agreement or the issuance of the Common Stock, or the consummation of the
transactions herein contemplated, result in a violation of, or constitute a default under, the
Company’s Certificate of Incorporation or By-laws, any material obligations, agreements, covenants
or conditions contained in any bond, debenture, note or other evidence of indebtedness or in any
material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or
instrument to which the Company is a party or by which it or any of its properties may be bound or
any material order, rule, regulation, writ, injunction, or decree of any government, governmental
instrumentality or court, domestic or foreign.
III. COVENANTS BY THE COMPANY
3.1 Until the earlier of (i) twelve (12) months following the Initial Closing Date (as defined
in the PPM) or (ii) such date that there is an effective registration statement on file with the
SEC covering the resale of all of the shares of Common Stock issued in the Offering and all shares
of Common Stock issuable upon exercise of the Warrants issued in the Offering, in the event that
the Company issues or sells any shares of Common Stock or any Common Stock Equivalents (as defined
below) pursuant to which shares of Common Stock may be acquired at a price less than $1.00 per
share, then the Company shall promptly issue additional shares of Common Stock to the Subscriber in
an amount sufficient that the subscription price paid hereunder, when divided by the total number
of shares issued will result in an actual price paid per share of Common Stock hereunder equal to
such lower price (this is intended to be a “full ratchet” adjustment). Such adjustment shall be
made successively whenever such an issuance is made. Notwithstanding the foregoing, this Section
3.1 shall not apply in respect of an Exempt Issuance (as defined below).
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3.2 For purposes of this Agreement, (i) “Common Stock Equivalents” means any securities of the
Company or any of its subsidiaries which would entitle the holder thereof to acquire at any time
Common Stock, including, without limitation, any debt, preferred stock,
rights, options, warrants or other instrument that is at any time convertible into or
exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock
and (ii) “Exempt Issuance” means the issuance of (a) shares of Common Stock or options to
employees,
officers, directors, or consultants of the Company pursuant to any stock or option plan
duly adopted for such purpose by a majority of the non-employee members of the Board of Directors
of the Company or a majority of the members of a committee of non-employee directors established,
(b) securities upon the exercise or exchange of or conversion of any securities issued hereunder
and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock
issued and outstanding on the date of this Agreement, provided that such securities have not been
amended since the date of this Agreement to increase the number of such securities or to decrease
the exercise, exchange or conversion price of such securities; and (c) securities issued pursuant
to acquisitions or strategic transactions approved by a majority of the disinterested directors of
the Company, provided that any such issuance shall only be to a person which is either an owner of,
or an entity that is, itself or through its subsidiaries, an operating company in a business
synergistic with the business of the Company and in which the Company receives benefits in addition
to the investment of funds, but shall not include a transaction in which the Company is issuing
securities primarily for the purpose of raising capital or to an entity whose primary business is
investing in securities.
3.3 Absent a prior determination by the non-employee directors of the Company that it is in
the Company’s best interest, for a period of 12 months following the closing of the Merger (as
defined in the PPM), the Company shall not (i) issue or grant more than an aggregate of 2,500,000
options, warrants or shares of common stock (subject to appropriate adjustments for any stock
dividend, stock split, stock combination, reclassification or similar transaction) to any
employees, officers, directors, or consultants of the Company or (ii) issue any options having an
exercise price that is less than $1.00 per share (subject to appropriate adjustments for any stock
dividend, stock split, stock combination, reclassification or similar transaction).
IV. TERMS OF SUBSCRIPTION
4.1 Subject to Section 4.2 hereof, the subscription period will begin as of the date of the
PPM and will terminate at 11:59 PM Eastern Time, on the earlier of the date on which the Maximum
Offering is sold or the Offering is terminated by the Company (the “Termination Date”). The minimum
subscription amount is $25,000, although the Company may, in its discretion, accept subscriptions
for less than $25,000.
4.2 The Subscriber shall effect a wire transfer in the full amount of the purchase price for
the Units to the Company’s escrow account in accordance with the wire instructions attached as
Exhibit F to the PPM or shall deliver a check in payment of the purchase price for the
Units.
4.3 Pending the sale of the Units, all funds paid hereunder shall be deposited by the Company
in escrow with the Company’s escrow agent, which funds shall be held and distributed pursuant to an
Escrow Agreement, the form of which is attached as Exhibit H to the PPM. If the Company
shall not have obtained subscriptions (including this subscription) for the Minimum Offering on or
before the Termination Date (as such date may be extended by the
Company), then this subscription shall be void and all funds paid hereunder by the Subscriber
shall be promptly returned without interest to the Subscriber, to the same account from which the
funds were drawn. If subscriptions are received, reconfirmed and accepted and payment
tendered for
the Minimum Offering on or prior to the Termination Date, then all subscription proceeds (less fees
and expenses) shall be paid over to the Company within ten (10) days thereafter or such earlier
date that is one business day after the amount of good funds in escrow equals or exceeds
$1,600,000. In such event, sales of the Units may continue thereafter until the earlier of the
date on which the Maximum Offering is sold and the Termination Date, with subsequent releases of
funds from time to time at the discretion of the Company.
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4.4 The Subscriber hereby authorizes and directs the Company and its escrow agent to deliver
any certificates or other written instruments representing the Units, and/or its underlying
securities to be issued to such Subscriber pursuant to this Subscription Agreement to the address
indicated on the signature page hereof.
4.5 The Subscriber hereby authorizes and directs the Company and its escrow agent to return
any funds, without interest, for unaccepted subscriptions to the same account from which the funds
were drawn.
4.6 If the Subscriber is not a United States person, such Subscriber shall immediately notify
the Company and the Subscriber hereby represents that the Subscriber is satisfied as to the full
observance of the laws of its jurisdiction in connection with any invitation to subscribe for the
Units or any use of this Subscription Agreement, including (i) the legal requirements within its
jurisdiction for the purchase of the Units, (ii) any foreign exchange restrictions applicable to
such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the
income tax and other tax consequences, if any, that may be relevant to the purchase, holding,
redemption, sale or transfer of the Units. Such Subscriber’s subscription and payment for, and
continued beneficial ownership of, the Units will not violate any applicable securities or other
laws of the Subscriber’s jurisdiction.
V. MISCELLANEOUS
5.1 Any notice or other communication given hereunder shall be deemed sufficient if in writing
and sent by reputable overnight courier, facsimile (with receipt of confirmation) or registered or
certified mail, return receipt requested, addressed to the Company, at Genesis Fluid Solutions,
0000 Xxxxxxxxx Xxxxx, Xxxxx 000-X, Xxxxxxxx Xxxxxxx, XX 00000, Attention: Xxxxxxx Xxxxxx,
facsimile: ___________________, and to the Subscriber at the address or facsimile number indicated
on the signature page hereof. Notices shall be deemed to have been given on the date when mailed
or sent by facsimile transmission or overnight courier, except notices of change of address, which
shall be deemed to have been given when received.
5.2 This Subscription Agreement shall not be changed, modified or amended except by a writing
signed by both (a) the Company and (b) subscribers in the Offering holding a majority of the Units
issued in the Offering.
5.3 This Subscription Agreement shall be binding upon and inure to the benefit of the parties
hereto and to their respective heirs, legal representatives, successors and
assigns. This Subscription Agreement sets forth the entire agreement and understanding
between the parties as to the subject matter hereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among them.
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5.4 Notwithstanding the place where this Subscription Agreement may be executed by any of the
parties hereto, the parties expressly agree that all the terms and provisions hereof shall be
construed in accordance with and governed by the laws of the State of New York. The parties hereby
agree that any dispute which may arise between them arising out of or in connection with this
Subscription Agreement shall be adjudicated only before a Federal court located in New York, New
York and they hereby submit to the exclusive jurisdiction of the federal courts located in New
York, New York with respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting the venue of any such
action or proceeding brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Subscription Agreement or any acts or
omissions relating to the sale of the securities hereunder, and consent to the service of process
in any such action or legal proceeding by means of registered or certified mail, return receipt
requested, in care of the address set forth below or such other address as the undersigned shall
furnish in writing to the other. The parties further agree that in the event of any dispute,
action, suit or other proceeding arising out of or in connection with this Subscription Agreement,
the PPM or other matters related to this subscription brought by a Subscriber (or transferee), the
Company (and each other defendant) shall recover all of such party’s attorneys’ fees and costs
incurred in each and every action, suit or other proceeding, including any and all appeals or
petitions therefrom. As used herein, attorney’s fees shall be deemed to mean the full and actual
costs of any investigation and of legal services actually performed in connection with the matters
involved, calculated on the basis of the usual fee charged by the attorneys performing such
services.
5.5 This Subscription Agreement may be executed in counterparts. Upon the execution and
delivery of this Subscription Agreement by the Subscriber, this Subscription Agreement shall become
a binding obligation of the Subscriber with respect to the purchase of Units as herein provided;
subject, however, to the right hereby reserved by the Company to (i) enter into the same agreements
with other subscribers, (ii) add and/or delete other persons as subscribers and (iii) reduce the
amount of or reject any subscription.
5.6 The holding of any provision of this Subscription Agreement to be invalid or unenforceable
by a court of competent jurisdiction shall not affect any other provision of this Subscription
Agreement, which shall remain in full force and effect.
5.7 It is agreed that a waiver by either party of a breach of any provision of this
Subscription Agreement shall not operate or be construed as a waiver of any subsequent breach by
that same party.
5.8 The parties agree to execute and deliver all such further documents, agreements and
instruments and take such other and further actions as may be necessary or appropriate to carry out
the purposes and intent of this Subscription Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have executed this Subscription Agreement as of the day and
year first written above.
__________________________
|
X $25,000 for each Unit | = $ __________________________; .. | ||
Number of Units subscribed for
|
Aggregate Purchase Price |
Manner in which Title is to be held (Please Check One):
1.
|
o | Individual | 7. | o | Trust/Estate/Pension or Profit Sharing Plan Date Opened: _________________ | |||||||
2.
|
o | Joint Tenants with Right of Survivorship | 8. | o | As a Custodian for _______________________________ Under the Uniform Gift to Minors Act of the State of ________________________________ | |||||||
3.
|
o | Community Property | 9. | o | Married with Separate Property | |||||||
4.
|
o | Tenants in Common | 10. | x | Xxxxx | |||||||
5.
|
o | Corporation/Partnership/Limited Liability Company |
11. | o | Tenants by the Entirety | |||||||
6.
|
o | XXX | 12. | o | Foundation described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. |
IF MORE THAN ONE SUBSCRIBER, EACH SUBSCRIBER MUST SIGN:
| • | INDIVIDUAL SUBSCRIBERS MUST COMPLETE PAGE A-10 |
||
| • | SUBSCRIBERS WHICH ARE ENTITIES MUST COMPLETE PAGE X-00 |
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XXXXXXXXX BY NATURAL PERSONS
| ACCEPTED this
____
day of
___________
2009, on behalf of Genesis Fluid Solutions Holdings, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation, Partnership, Trust, Etc.) |
||||
Date of Incorporation or Organization: |
||||
State of Principal Office: |
||||
Federal Taxpayer Identification Number: _______________________________________ |
||||
[seal]
|
By: | |||||
| Name: | ||||||
Attest:
|
Title: | |||||
| (If Entity is a Corporation) | ||||||
| *If Subscriber is a Registered Representative with a FINRA member firm, have the following acknowledgement signed by the appropriate party: | ||||||
| The undersigned FINRA member firm acknowledges receipt of the notice required by Rule 3050 of the FINRA Conduct Rules | ||||||
| ACCEPTED this ____ day of __________ 2009, on behalf of Genesis Fluid Solutions Holdings, Inc. | ||||||
By:
|
By: | |||||
| Name: | Name: | |||||
| Title: | Title: | |||||
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