SUBSCRIPTION AGREEMENT Timeshare Holdings, Inc
EXHIBIT
10.4
Timeshare
Holdings, Inc
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THIS
SUBSCRIPTION AGREEMENT
made
this _____day of ______________, 2007 by and between Timeshare Holdings Inc.,
a
Nevada corporation (hereinafter “Issuer” or “Company”),
and the undersigned Subscriber (hereinafter “Subscriber”), who, for and in
consideration of the mutual promises and covenants set forth herein, do hereto
agree as follows:
1. Subscription.
The
Subscriber hereby subscribes for 1,000 Shares (hereinafter “Shares” or
“securities”) of the Company, at a price of $.10 per Share, and herewith tenders
to the Issuer a bank check for the subscription in the amount of $100.00, which
the Subscriber tenders herewith as payment for the Shares. Each Share consists
of one share of $.001 par value common stock of the Company. This Subscription
Agreement (hereinafter “Subscription”) is an irrevocable offer by the Subscriber
to subscribe for the securities offered by the Issuer, and, subject to the
terms
hereof, shall become a contract for the sale of said securities upon acceptance
thereof by the Issuer.
2. Acceptance.
This
Subscription Agreement is made subject to the Issuer’s discretionary right to
accept or reject the Subscription herein. The Subscriber will be notified upon
closing of the offering whether the Subscription has been accepted. If the
Issuer for any reason rejects this Subscription, the Subscription will be
refunded in full, without interest, and this Subscription Agreement shall be
null, void and of no effect. Acceptance of this Subscription by the Issuer
will
be evidenced by the execution hereof by an officer of the Issuer.
3. Subscriber
Representations.
The
Subscriber hereby represents, warrants and agrees that:
(a)
The
Subscriber has had an opportunity to ask questions and receive information
from
the Company.
(b)
The
Subscriber’s
representations in this Agreement are complete and accurate to the best of
the
Subscriber’s
knowledge, and the Company and any sales agent may rely upon them. The
Subscriber will notify the Company and any such agent immediately if any
material change occurs in any of this information before the sale of the
Shares.
(c)
The
Subscriber is an "accredited investor" as defined by Regulation D as set forth
below;
According
to Rule 501(a) of Regulation D, "accredited investor" means any person who
comes
within any of the following categories, or who the Issuer reasonable believes
comes within any of the following categories, at the time of the sale of the
Shares to that person:
(i)
Any
bank as defined in section 3(a)(2) of the Act, or any savings and loan
association or other institution as defined in section 3(a)(5)(A) of the Act
whether acting in its individual or fiduciary capacity; any broker or dealer
registered pursuant to section 15 of the Securities Exchange Act of 1934; an
insurance company as defined in section 2(13) of the Act; an investment company
registered under the Investment Company Act of 1940 or a business development
company as defined in section 2(a)(48) of that Act; a Small business Investment
Company licensed by the U.S. Small Business Administration under section 301(c)
or (d) of the Small Business Investment Act of 1958; any plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of a State or its political subdivisions, for the benefit of
its
employees, if such plan has total assets in excess of $5,000,000; any employee
benefit plan within the meaning of the Employee Retirement Income Security
Act
of 1974, if the investment decision is made by a plan fiduciary, as defined
in
section 3(21) of such Act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the employee benefit
plan has total assets in excess of $5,000,000 or, if a self-directed plan,
with
investment decisions made solely by persons that are accredited investors;
(ii)
Any
private business development company as defined in section 202(a)(22) of the
Investment Advisers Act of 1940;
(iii)
Any
organization described in section 501(c)(3) of the Internal Revenue Code,
corporation, Massachusetts or similar business trust, or partnership, not formed
for the specific purpose of acquiring the securities offered, with total assets
in excess of $5,000,000;
(iv)
Any
director, executive officer, or general partner of the issuer of the securities
being offered or sold, or any director, executive officer, or general partner
of
that issuer;
(v)
Any
natural person whose individual net worth, or joint net worth with that person's
spouse, at the time of his purchase exceeds $1,000,000;
(vi)
Any
natural person who had individual income in excess of $200,000 in each of the
two most recent years or joint income with that person's spouse in excess of
$300,000 in each of those years and has a reasonable expectation of reaching
the
same income level in the current year;
(vii)
Any
trust, with total assets in excess of $5,000,000, not formed for the specific
purpose of acquiring the securities offered, whose purchase is directed by
a
sophisticated person as described in section 30.506(b)(2)(ii); and
(viii)
Any entity in which all of the equity owners are accredited
investors.
(d) The
Subscriber is able to bear the economic risk of an investment in the securities
for an indefinite period of time, can afford to risk the loss of the entire
investment in the securities, and will, after making an investment in the
securities, have sufficient means of providing for current needs and possible
future contingencies without reliance upon this investment. Additionally, the
Subscriber’s
overall
commitment to investments that are not readily marketable is not
disproportionate to the Subscriber’s
net
worth and this Subscription will not cause such overall commitment to become
excessive.
(e) The
Subscriber understands and acknowledges that the securities are being offered
and sold in reliance upon an exemption from registration under Section 4(6)
under the Securities Act of 1933 (hereinafter “Securities Act”), and are
therefore subject to the limitations on resale pursuant to Rule 144. Further
the
Subscriber understands the securities subscribed for herein are being acquired
for the Subscriber’s
own
account and risk, and not on behalf of any other person and are being purchased
by the Subscriber for investment and not with a view to the distribution of
the
securities. The Subscriber is aware that although there are no legal
restrictions on the transferability of the securities, the Subscriber must
register the securities or have an exemption from registration before the
Subscriber may resell the securities. Further the Subscriber understands, there
is presently a very limited public market for the securities and no assurance
of
a future public market for the securities, and, accordingly, it is unlikely
that
the Subscriber will be readily able to liquidate an investment in the
securities.
The
undersigned understands that the securities have not been registered, but are
being acquired by reason of a specific exemption under the Securities Act as
well as under certain state statutes for transactions by an issuer not involving
any public offering and that any disposition of the subject securities may,
under certain circumstances, be inconsistent with this exemption and may make
the undersigned an "underwriter" within the meaning of the Securities Act.
It is
understood that the definition of an "underwriter" focuses on the concept of
"distribution" and that any subsequent disposition of the subject securities
can
only be effected in transactions that are not considered distributions.
Generally, the term "distribution" is considered synonymous with "public
offering" or any other offer or sale involving general solicitation or general
advertising. Under present law, in determining whether a distribution occurs
when securities are sold into the public market, under certain circumstances
one
must consider the availability of public information regarding the issuer,
a
holding period for the securities sufficient to assure that the persons desiring
to sell the securities without registration first bear the economic risk of
their investment, an a limitation on the number of securities which the
stockholder is permitted to sell and on the manner of sale, thereby reducing
the
potential impact of the sale on the trading markets. These criteria are set
forth specifically in rule 144 promulgated under the Securities Act. After
one
year from the later of the date the securities are acquired from the Issuer
or
an affiliate of the Issuer and the full purchase price or other consideration
is
paid, all as calculated in accordance with rule 144(d), sales of the securities
in reliance on rule 144 can only be made in limited amounts in accordance with
the terms and conditions of that rule. After two years from the date the
securities are fully paid for, as calculated in accordance with rule 144(d),
it
can generally be sold without meeting these conditions provided the holder
is
not (and has not been for the preceding three months) an affiliate of the
issuer.
The
undersigned acknowledges that the securities must be held and may not be sold,
transferred, or otherwise disposed of for value unless it is subsequently
registered under the Securities Act or an exemption from such registration
is
available; the Issuer is under no obligation to register the securities under
the Securities Act or under section 12 of the Securities Exchange Act of 1934,
as amended, except as may be expressly agreed to be it in writing; if rule
144
is available, and no assurance is given that it will be, initially only routine
sales of such securities in limited amounts can be made in reliance on rule
144
in accordance with the terms and conditions of that rule; the Issuer is under
no
obligation to the undersigned to make rule 144 available, compliance with
regulation A or some other exemption may be required before the undersigned
can
sell, transfer, or otherwise dispose of such securities without registration
under the Securities Act; the Issuer's registrar and transfer agent will
maintain a stop transfer order against the registration of transfer of the
securities; and the certificate representing the securities will bear a legend
in substantially the following form so restricting the sale of such
securities.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ARE "RESTRICTED
SECURITIES" WITHIN THE MEANING OF RULE 144 PROMULGATED UNDER THE SECURITIES
ACT.
THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR
TRANSFERRED WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT.
The
Issuer may refuse to register transfer of the securities in the absence of
compliance with rule 144 unless the undersigned furnishes the Issuer with a
"no-action" or interpretative letter from the Securities and Exchange Commission
or an opinion of counsel reasonably acceptable to the Issuer stating that the
transfer is proper; further, unless such letter or opinion states that the
securities are free of any restrictions under the Securities Act, the Issuer
may
refuse to transfer the securities to any transferee who does not furnish in
writing to the Issuer the same representations and agree to the same conditions
with respect to such securities as are set forth herein. The Issuer may also
refuse to transfer the securities if any circumstances are present reasonably
indicating that the transferee's representations are not accurate.
(f) The
Subscriber hereby agrees that he does not have the right to cancel this
Subscription Agreement, which shall survive the death, disability, or the
cessation of existence as a legal entity, of the Subscriber. Further, the
Subscriber agrees that he does not have the right, and will not attempt, to
transfer his interest herein.
(g) The
Subscriber has had access to any and all information concerning the Issuer
whom
the Subscriber and the Subscriber’s
financial, tax and legal advisors required or considered necessary to make
a
proper evaluation of this investment. In making the decision solely upon their
own independent investigations, and fully understand that there are no
guarantees, assurances or promises in connection with any investment hereunder
and understand that the particular tax consequences arising from this investment
in the Issuer will depend upon the Subscriber’s
individual
circumstances. The Subscriber further understands that no opinion is being
given
as to any securities matters involving the offering.
(h) The
Subscriber shall indemnify and hold the Issuer harmless from all costs and
expenses, including reasonable attorney’s
fees,
incurred by the Issuer as a result of a breach hereof by the Subscriber.
Further, all of the representations and warranties of the Subscriber contained
herein and all information furnished by the Subscriber to the Issuer are true,
correct and complete in all respects, and the Subscriber agrees to notify the
Issuer immediately of any change in any representation, warranty or other
information set forth herein.
(i) The
Subscriber has been given the unrestricted opportunity to ask questions of,
and
receive answers from the Issuer, or persons acting on its behalf, concerning
the
terms and conditions of, and all other matters relating to the offering, and
has
been given the unrestricted opportunity to obtain such additional information
with respect to the offering as he has desired, including, but not limited
to,
any additional information necessary to verify the accuracy of the information
set forth in the attached documentation. The undersigned has carefully read
all
material identified as being attached hereto and has no further questions with
respect thereto.
(j) The
Subscriber knows that the securities subscribed for herein are offered and
sold
pursuant to exemptions from registration and the Securities Act of 1933, and
state securities law based, in part, on these warranties and representatives,
which are the very essence of this Subscription Agreement, and constitute a
material part of the bargained-for consideration without which this Agreement
would not have been executed.
(k) By
reason
of the Subscriber’s
business or financial experience, the Subscriber has the capacity to protect
his
own interest in connection with this transaction or has a pre-existing personal
or business relationship with the company or one or more of its officers,
directors or controlling persons consisting of personal or business contacts
of
a nature and duration such as would enable a reasonably prudent purchaser to
be
aware of the character, business acumen and general business and financial
circumstances of such person with whom such relationship exists.
(l) This
Agreement when fully executed and delivered to the Company will constitute
a
valid and legally binding obligation of the Subscriber, enforceable in
accordance with its terms. The Subscriber, if it is a partnership, joint
venture, corporation, trust or other entity, was not formed or organized for
the
specific purpose of acquiring the Shares. The purchase of the Shares by the
Subscriber, if it is an entity investor, is a permissible investment,
declaration of trust or other similar charter document, and has been duly
approved by all requisite action by the entity’s
owners,
directors, officers or other authorized managers. The person signing this
document and all documents necessary to consummate the purchase of the Shares
has all requisite authority to sign such document on behalf of the Subscriber,
if it is an entity investor.
(m) In
connection with this offering the Subscriber has received certain information
from the Company which the Subscriber has reviewed and is familiar with the
contents. The Subscriber has not duplicated or distributed this information
to
anyone other than his Purchaser Representative or other personal advisors,
and
will not do so in the future.
(n) The
Shares offered hereby were not offered to the Subscriber by way of general
solicitation or general advertising and at no time was the Subscriber presented
with or solicited by means of any leaflet, public promotional meeting, circular,
newspaper or magazine article, radio or television advertisement.
4. Governing
Law.
The
laws of the state of Nevada shall govern this Subscription.
5. Entire
Agreement.
This
Subscription Agreement together with any other documents executed
contemporaneously herewith, constitute the entire agreement between the parties
with respect to the matters covered thereby, and may only be amended by a
writing executed by all parties hereto.
6. Survival
of Representations.
The
representations, warranties, acknowledgments and agreements made by the
Subscriber shall survive the acceptance of this Subscription and run in favor
of, and for the benefit of, the Issuer.
7. Waiver.
No
waiver or modification of any of the terms of this Agreement shall be valid
unless in writing. No waiver of a breach of, or default under, any provision
hereof shall be deemed a waiver of such provision or of any subsequent breach
or
default of the same or similar nature or of any other provision or condition
of
this Agreement.
8. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
9. Notices.
Except
as otherwise required in this Agreement, any notice required or permitted under
this Agreement shall be given in writing and shall be deemed effectively given
upon personal delivery or upon deposit with the United States Post Office,
by
registered or certified mail, postage prepaid, addressed to the last known
address of the party.
10. Non-Assign
Ability.
The
obligations of the Subscriber hereunder shall not be delegated or assigned
to
any other party without the prior written consent of the Company.
11. Expenses.
Each
party shall pay all of its costs and expenses that it incurs with respect to
the
negotiation, execution and delivery of this Agreement.
12. Form
of Ownership.
Please
indicate the form of ownership that the Subscriber desires for the
Shares:
____ Individual
____ Joint
Tenants with Right of Survivorship
____ Tenants
in Common
____ Community
Property
____ Trust
____ Corporation
____ Partnership
____ Other:
_____________________________
INDIVIDUAL(S)
SIGN HERE: SUBSCRIBER:
(Signature)
____________________________________________
(Print
Name)
Date:
________________________________________
ACCEPTED:
COMPANY
By:
_________________________________________
Date:
___________________
Number
of
Shares Subscribed
For
Purchase: *1,000*