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EXHIBIT 4.5
SUBSCRIPTION AGREEMENT
Karts International Incorporated
000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Gentlemen:
The undersigned (the "Investor") hereby subscribes for _______________
investment unit(s) ("Units") in Karts International Incorporated (the
"Corporation"), a Nevada corporation, at an offering price of $3.50 each, with
each Unit consisting of (i) one (1) share of common stock and (ii) twenty (20)
Class A Warrants, each Class A Warrant to purchase one share of common stock at
a price of $3.50 per share for a period of 3 months after the close of the
Private Offering.
1. Subscription Payment. As full payment for this subscription,
simultaneously with the execution hereof the Investor is delivering his/her/its
check payable to the order of the Corporation in the amount set forth in
paragraph 13 below.
2. Representations of the Investor. The Investor hereby
represents and warrants to the Corporation as follows:
2.1 Investment Intent. The Units purchased by the Investor
are being acquired for investment for such Investor's own account, not as a
nominee or agent, and not for resale or with a view to the distribution of any
part thereof.
2.2 Suitability as an Investor. The Investor, together with
its or his investment advisor, if any, has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of an investment in the Units; the Investor has the ability to bear the
risk of loss of the Investor's entire investment in the Corporation; the
Investor's investment in the Units does not represent a material investment
when compared to the Investor's total financial capacity; and the Investor has
the capacity to protect the Investor's own interests in connection with the
transactions contemplated by this Agreement.
2.3 Nature of Investment. The Investor hereby acknowledges
his understanding that the Units are not being registered or qualified under
the Securities Act of 1933, as amended (the "Act"), or any state securities
laws, on the grounds that the issuance and sale of the Units to the Investor is
exempt under Section 4(2) of the Act and/or Regulation D promulgated
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thereunder as not involving a public offering, and that there will be no public
market for the Units or the underlying securities comprising the Unit, other
than sale and issuance to New York residents, to which a qualified exemption
exists. The Investor is aware that the Units and the underlying securities
must be held indefinitely unless they are subsequently registered or an
exemption from such registration is available and that the Corporation is under
no obligation to register the Units or the underlying securities or take any
step to enable it to secure or an exemption from registration, nor does it
presently have any intention to do so. However, as of the date hereof, such an
exemption presently exists under Rule 504 of Regulation D.
2.4 Requisite Authority. All action on the part of the
Investor necessary for the acquisition of the Units and the consummation of the
transactions contemplated herein has been duly and validly taken, and this
Agreement is a valid and binding obligation of the Investor, enforceable
against the Investor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights and by equitable principles of general
application which may limit the availability of certain equitable remedies,
such as specific performance.
2.5 Risk Factors. The Investor is aware of and understands
the high degree of risk associated with an investment in the Corporation.
2.6 Full Access to Information. The Investor (i) has had the
full opportunity to ask questions of, and receive answers from, the Corporation
(or its executive officers and other persons acting on its behalf) regarding
the terms and conditions of the offering and this Agreement, the Units and any
other documents and materials delivered to it, and the transactions
contemplated thereby, as well as the business, operations and affairs of the
Corporation and related matters, (ii) has not relied on any information in
connection with this investment other than that provided to it in writing by
the Corporation or contained in its books and records, and (iii) has had all
such questions answered and all such review concluded to the Investor's full
satisfaction.
2.7 Corporate Entity. If the Investor is an entity such as a
corporation, partnership or trust, (i) it is authorized and otherwise duly
qualified to purchase and hold Units in the Corporation, has its principal
place of business as set forth on the signature page hereof, (ii) has not been
formed for the specific purpose of acquiring Units in the Corporation unless
all of its equity owners qualify as accredited individual investors, and (iii)
the individual signing the Agreement on such entity's behalf is duly authorized
to sign this Agreement.
3. Representations of the Corporation. The Corporation hereby
represents and warrants to the Investor that:
3.1 Due Authorization. The execution, delivery and
performance by the Corporation of this Agreement has been duly authorized by
all required corporate action on the part of the Corporation. The Units have
been duly authorized and, upon the execution and delivery of this Agreement by
the Investor and the Corporation, the shares of Common Stock comprising the
Units shall be validly issued, fully paid and non-assessable and the shares of
Common Stock underlying the Warrants, when paid for in accordance with the
terms thereof, shall be validly issued, fully paid and non-assessable.
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3.2 Organization and Authority. The Corporation is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Nevada and has all requisite corporate power and authority
to own its properties and to carry on its business as currently conducted.
3.3 No Violations. The Corporation is not in violation or
default under, nor will its execution, delivery and performance of this
Agreement result in a violation of or constitute a default under, its
Certificate of Incorporation or By-Laws or any material instrument of
indebtedness, mortgage or security agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may
be bound, except such violations or defaults which would not have a material
adverse effect on its business or financial condition.
4. Indemnification. The Investor agrees to indemnify and hold
harmless the Corporation and its officers, directors, employees,
representatives, agents and affiliates against any and all loss, liability,
claim damage and expense whatsoever (including, but not limited to, any and all
expenses reasonably incurred in investigating, preparing or defending against
any litigation commenced or threatened or any claim whatsoever) arising out of
or based upon any false representation or warranty or breach of a
representation or warranty or failure by the Investor to comply with any
covenant or agreement made by the Investor herein or in any other document
furnished by the Investor to the Corporation in connection with this
transaction.
5. Survival of Representations, Warranties or Covenants. The
representations, warranties, and covenants contained herein shall survive the
delivery of, and payment for, the Units and the consummation of the
transactions contemplated hereby.
6. Notices. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been given, if mailed by certified mail, return receipt requested, or delivered
against receipt of the party to whom it is to be given (a) if to the
Corporation, at the address set forth above, or (b) if to the Investor, at the
address set forth on the signature page hereof (or, in either case, to such
other address as the party shall have furnished in writing in accordance with
the provisions of this Section 6). Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof
except for a notice changing a party's address, which shall be deemed given at
the time of receipt thereof.
7. Unenforceability. If any provision of this Agreement, or
portion hereof, shall be held invalid or unenforceable by a court of competent
jurisdiction, such invalidity or unenforceability shall attach only to such
provision, or portion thereof, and shall not in any manner affect or render
invalid or unenforceable any other provision, or portion thereof.
8. Further Assurances. Each party hereto shall cooperate and
shall take such further action and shall execute and deliver such further
documents as may be reasonably requested by any other party in order to carry
out the provisions and purposes of this Agreement.
9. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute but one and the same
agreement.
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10. Governing Law. Except to the extent that the Nevada General
Corporation Law shall be applicable with respect to matters relating to the
internal corporate affairs of the Corporation, this Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to contracts made and to be performed wholly within the State of New
York.
11. Jurisdiction. The Investor hereby consents and submits to the
exclusive jurisdiction of the courts of the State of New York in New York City
and of the Federal courts located in the Southern District of New York with
respect to any action, dispute or controversy relating to this Agreement or the
Units. The Investor also hereby waives personal service of any and all process
upon the Investor, and agrees that all such service of process may be made by
registered mail directed to the Investor at the address provided in Section 6
hereof and that service so made shall be deemed to be completed three (3)
business days after the same shall have been deposited in the United States
mails, postage prepaid. The Investor and the Corporation waive trail by jury
and waive any objection to venue of any action instituted hereunder and consent
to the granting of such legal or equitable relief as is deemed appropriate by
the court.
12. Headings. The section and other headings contained herein are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
(Intentionally Blank)
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13. Subscription and Method of Payment. The Investor hereby
subscribes for _______________ Units at $3.50 per Unit for an aggregate price
of $_________________, and encloses a certified check or money order payable to
"Karts International Incorporated" in the amount of $_______________.
__________________________________________
Signature of Investor
__________________________________________
Print or Type Name
__________________________________________
Title, if applicable
Address of Investor:
__________________________________________
__________________________________________
Taxpayer Identification or Social Security
Number of Investor:
__________________________________________
The foregoing subscription is hereby accepted by the Corporation this
______ day of ___________, 1996 for _____________ Unit(s).
KARTS INTERNATIONAL INCORPORATED
__________________________________________
V. Xxxx Xxxxxxxx, President
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