4C CONTROLS INC. Summit NJ 07901-0080 USA SUBSCRIPTION AGREEMENT (Regulation S) Common Stock US$_____ Per Share of Common Stock
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(Regulation
S)
Common
Stock
US$_____
Per Share of Common Stock
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1.1
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Subscription.
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(a)
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The
undersigned subscriber (the “Subscriber”),
intending to be legally bound, hereby irrevocably subscribes for
and
agrees to purchase such number of shares of Company Common Stock
(the
“Shares”) as set forth on the signature page hereof, to be issued by 4C
Controls Inc., a Nevada corporation (the “Company”)
in an offshore transaction negotiated outside the United States and
to be
consummated and closed outside the United States pursuant to the
terms and
conditions of this Agreement (this “Agreement”).
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(b)
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The
Subscriber acknowledges and agrees that the price
per Share is US$_____
( U.S.
dollars per share)..
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1.2
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Procedure
for Purchase of Shares.
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Following
delivery of this Agreement to the Company together with Subscriber’s anti-money
laundering due diligence information, the Company shall make a determination
of
acceptance or rejection of the Subscription. Upon notice of acceptance of this
Agreement, the Subscriber shall deliver to the Company the full purchase price
by wire transfer of immediately available funds in amount equal to the number
of
Shares subscribed by the Subscriber and accepted by the Company (the
“Purchase
Price”).
Wire
instructions are attached hereto as Appendix A. The Subscriber shall fax a
copy
of the wire transfer information to the Company.
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1.3
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Acceptance
or Rejection.
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(a)
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The
Subscriber understands and agrees that the Company reserves the right
to
accept or reject at its sole discretion this Subscription Agreement.
The
Company reserves the right to accept the subscription in part and
refund
any balance of the Purchase Price for any unaccepted portion of the
subscription. At any time prior to the Closing the Company may reject
or
terminate the subscription notwithstanding delivery of notice of
acceptance of the subscription. The Company also reserves the right
exercisable at any time and at its sole discretion to return the
Purchase
Price and cancel the issuance of the Shares if the Company determines
that
issuance of the Shares would cause any actual or potential violation
of
any U.S. laws, rules or regulations or the rules of any stock market,
securities exchange or securities quotation system.
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(b)
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The
Subscriber understands and agrees that its subscription under this
Agreement for the Shares is
irrevocable.
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(c)
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In
the event the sale of the Shares subscribed by the Subscriber is
not
consummated by the Company for any reason (in which event this
Subscription Agreement shall be deemed to be rejected), this Subscription
Agreement and any other agreement entered into between the Subscriber
and
the Company relating to this subscription shall thereafter have no
force
or effect and the Company shall promptly return or cause to be returned
to
the Subscriber the Purchase Price remitted to the Company by the
Subscriber, without interest thereon or deduction therefrom (except
for
third party banking and wire transfer fees), in exchange for the
Shares.
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2.1
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Closing.
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The
closing (the “Closing”)
of the
purchase and sale of the Shares, shall occur following notice of acceptance
by
the Company of the Subscriber's subscription. The Subscriber must deliver the
Purchase Price to the Company within five (5) business days of notice of
acceptance of the Subscription by the Company. The Company shall use
commercially reasonable efforts to deliver the Stock Certificates underlying
the
Shares to the Subscriber within ten (10) business days after the date of receipt
of the Purchase Price. The Closing shall be deemed to occur upon confirmation
of
receipt by the Subscriber of the Stock Certificates representing all purchased
Shares. If the Company does not receive the Purchase Price from the Subscriber
by wire transfer within five (5) business days of notice of acceptance of the
Subscription by the Company, the Company may at its sole discretion terminate
the Subscription Agreement without recourse by the Subscriber. A business day
is
any weekday on which banks in New York City are open for normal business, which
for clarity excludes Saturdays, Sundays and legal bank holidays. Delivery of
the
Purchase Price by the Subscriber prior to acceptance of the Subscription
Agreement by the Company shall not bind the Company in any way.
4C
CONTROLS INC. - REGULATION
S SUBSCRIPTION AGREEMENT
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3.1
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Subscriber
Representations and Warranties.
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The
Subscriber hereby acknowledges, represents and warrants to, and agrees with,
the
Company as follows:
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(a)
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The
Subscriber represents and warrants that it is an individual, or an
entity
regulated under the laws of the jurisdiction set forth on the signature
page hereto. The Subscriber acknowledges and agrees that it is acquiring
the Stock solely for its own account for investment purposes only,
and not
with a view to, or for, resale, distribution or fractionalization
thereof
in whole or in part; and no other person has a direct beneficial
interest
in such Stock or any portion thereof. The Subscriber does not have
any
contract, undertaking, agreement or arrangement with any person to
sell,
transfer or grant participations to such person or to any third person,
with respect to the Shares for which the Subscriber is subscribing
or any
part of the Shares. The Subscriber does not control, nor is the Investor
controlled by or under common control with, any other Subscriber
or
investor in the Company. No person or persons other than Subscriber
has a
beneficial interest subscribed hereunder.
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(b)
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The
Subscriber has full power and authority to enter into this Agreement,
the
execution and delivery of this Agreement has been duly authorized,
if
applicable, and this Agreement constitutes a valid and legally binding
obligation of the Subscriber.
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(c)
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The
Subscriber is not acquiring the Stock 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 pursuant to any
solicitation of a subscription by a person not previously known to
the
Subscriber in connection with investment securities
generally.
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(d)
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The
Subscriber understands that the Company is under no obligation to
register
the Shares under the U.S. Securities Act of 1933, as amended (the
“Securities Act”), or to assist the Subscriber in complying with the
Securities Act or the securities laws of any state of the United
States or
of any foreign jurisdiction.
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(e)
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The
Subscriber is (i) experienced in making investments of the kind described
in this Agreement and the related documents, (ii) able, by reason
of the
business and financial experience of its officers (if an entity)
and
professional advisors (who are not affiliated with or compensated
in any
way by the Company or any of its affiliates or selling agents), to
protect
its own interests in connection with the transactions described in
this
Agreement, and the related documents, and (iii) able to afford the
entire
loss of its investment in the Shares. The Subscriber The Subscriber
further understands that the Company is in inception stage of development
and has no business or operations, the Company currently has no agreements
or arrangements with any persons in connection
therewith.
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(f)
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The
Subscriber acknowledges its understanding that the offering and sale
of
the Shares is intended to be exempt from registration under the Securities
Act; (i) The Subscriber acknowledges that the basis for the exemption
from
registration of the Shares may not be present if, notwithstanding
such
representations, the Subscriber is merely acquiring the Shares for
a short
term fixed or short determinable period in the future for less than
one
year, or for a market rise, or for sale if the market does not rise,
provided , however, the Subscriber reserves the right to make decisions
regarding disposition of the Shares at its own discretion; (ii) The
Subscriber has the financial ability to bear the economic risk of
his
investment, has adequate means for providing for his current needs
and
personal contingencies and has no need for liquidity with respect
to his
investment in the Company; (iii) The Subscriber has such knowledge
and
experience in financial and business matters as to be capable of
evaluating the merits and risks of the prospective investment in
the
Shares; The Subscriber also represents it has not been organized
for the
purpose of acquiring the Shares; (iv) The Subscriber has been provided
an
opportunity for a reasonable period of time prior to the date of
signature
by the Subscriber of this Subscription to obtain additional information
concerning the offering of the Shares, the Company and all other
information to the extent the Company possesses such information
or can
acquire it without unreasonable effort or expense; and (v) The Subscriber
has carefully reviewed all of the Company’s filings on the website of the
U.S. Securities and Exchange Commission (the “SEC
Documents”)
as filed under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”).
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2
4C
CONTROLS INC. - REGULATION
S SUBSCRIPTION AGREEMENT
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(g)
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The
Subscriber is not relying on the Company, or its affiliates or agents
with
respect to economic considerations involved in this investment. The
Subscriber has relied solely on its own respective advisors in making
an
investment determination.
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(h)
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No
representations or warranties have been made to the Subscriber by
the
Company, or any officer, employee, agent, affiliate or subsidiary
of the
Company, other than the representations of the Company contained
herein,
and in subscribing for the Shares the Subscriber is not relying upon
any
representations other than those contained herein. The Subscriber
acknowledges receipt of a numbered copy as originally issued to Subscriber
of the 4C Controls Inc. Confidential
Private Placement Offering Memorandum, in three parts or in one exemplar
if bound together as identified on the cover thereof, together with
such
numbered supplements and amendments delivered by the Company to Subscriber
(collectively, the “Offering
Memorandum”). The Subscriber has been furnished, has carefully read, and
has relied solely upon the information contained in the Offering
Memorandum and the Subscriber has not relied upon any other offering
literature, and no oral representations or warranties have been made
to
the Subscriber by the Fund by any person which is inconsistent with
the
Offering Memorandum. No oral or written representations have been
made, or
oral or written information furnished, to the Subscriber or its advisers,
if any, in connection with the subscription hereby which are inconsistent
with the information contained in the Offering Memorandum.
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(i)
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Any
resale of the Shares during the distribution compliance period as
defined
in Rule 902(f) to Regulation S shall only be made in compliance with
exemptions from registration afforded by Regulation S. Further, any
such
sale of the Shares in any jurisdiction outside of the United States
will
be made in compliance with the securities laws of such jurisdiction.
The
Subscriber will not offer to sell or sell the Shares in any jurisdiction
unless the Subscriber obtains all applicable required legal consents
and
regulatory approvals.
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(j)
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The
Subscriber understands that the Shares are being offered and sold
in
reliance on an exemption from the registration requirements of United
States federal and state securities laws under Regulation S promulgated
under the Securities Act and that the Company is relying upon the
truth
and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of The Subscriber set forth herein
in
order to determine the applicability of such exemptions and the
suitability of the Subscriber to acquire the Shares. In this regard,
the
Subscriber in its own capacity represents, warrants and agrees that:
(i)
The Subscriber is not a U.S. Person (as defined below) and is not
an
affiliate (as defined in Rule 501(b) under the Securities Act) of
the
Company and is not acquiring the Shares for the account or benefit
of a
U.S. Person. A U.S. Person means any one of the following: (1) any
natural
person resident in the United States of America; (2) any partnership
or
corporation organized or incorporated under the laws of the United
States
of America; (3) any estate of which any executor or administrator
is a
U.S. person; (4) any trust of which any trustee is a U.S. person;
(5) any
agency or branch of a foreign entity located in the United States
of
America; (6) any non-discretionary account or similar account (other
than
an estate or trust) held by a dealer or other fiduciary for the benefit
or
account of a U.S. person; (7) any discretionary account or similar
account
(other than an estate or trust) held by a dealer or other fiduciary
organized, incorporated or (if an individual) resident in the United
States of America; and (8) any partnership or corporation if: (A)
organized or incorporated under the laws of any foreign jurisdiction;
and
(B) formed by a U.S. person principally for the purpose of investing
in
securities not registered under the Securities Act, unless it is
organized
or incorporated, and owned, by accredited investors (as defined in
Rule
501(a) under the Securities Act) who are not natural persons, estates
or
trusts; (ii) At the time of the origination of contact concerning
this
Agreement and the date of the execution and delivery of this Agreement
by
the Subscriber, the Subscriber were outside of the United States;
(iii)
The Subscriber will not, during the period commencing on the date
of
issuance of the Shares and ending on the first anniversary of such
date,
or such shorter period as may be permitted by Regulation S or other
applicable securities law (the “Restricted
Period”),
offer, sell, pledge or otherwise transfer the Shares in the United
States,
or to a U.S. Person for the account or for the benefit of a U.S.
Person,
or otherwise in a manner that is not in compliance with Regulation
S; (iv)
The Subscriber will, after expiration of the Restricted Period, offer,
sell, pledge or otherwise transfer the Shares only pursuant to
registration under the Securities Act or an available exemption therefrom
and, in accordance with all applicable state and foreign securities
laws;
(v) The Subscriber was not in the United States, engaged in, and
prior to
the expiration of the Restricted Period and will not engage in, any
short
selling of or any hedging transaction with respect to the Shares,
including without limitation, any put, call or other option transaction,
option writing or equity swap; (vi) Neither the Subscriber nor or
any
person acting on his behalf has engaged, nor will engage, in any
directed
selling efforts to a U.S. Person with respect to the Shares and the
Subscriber and any person acting on his behalf has complied and will
comply with the offering restrictions requirements of Regulation
S under
the Securities Act; (vii) The transactions contemplated by this Agreement
have not been pre-arranged with a buyer located in the United States
or
with a U.S. Person, and are not part of a plan or scheme to evade
the
registration requirements of the Securities Act; (viii) Neither the
Subscriber nor any person acting on their respective behalf have
undertaken or carried out any activity for the purpose of, or that
could
reasonably be expected to have the effect of, conditioning the market
in
the United States, its territories or possessions, for any of the
Shares.
The Subscriber agrees not to cause any advertisement of the Shares
to be
published in any newspaper or periodical or posted in any public
place and
not to issue any circular relating to the Shares, except such
advertisements that include the statements required by Regulation
S under
the Securities Act, and only offshore and not in the U.S. or its
territories, and only in compliance with any local applicable securities
laws; (ix) The Subscriber consents to the Company making a notation
on its
records or giving instructions to any transfer agent of the Company
in
order to implement the restrictions on transfer of the Shares set
forth in
this Agreement; and (x) Each certificate representing the purchased
Shares
underlying the Shares shall be endorsed with the following legends,
in
addition to any other legend required to be placed thereon by applicable
federal or state securities
laws:
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3
4C
CONTROLS INC. - REGULATION
S SUBSCRIPTION AGREEMENT
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN OFFERED AND SOLD TO
NON-U.S. PERSONS, AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE SECURITIES ACT) AND WITHOUT REGISTRATION WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON
REGULATION S PROMULGATED UNDER THE SECURITIES ACT. TRANSFER OF THESE SECURITIES
IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S,
PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO AVAILABLE
EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE CONDUCTED UNLESS
IN
COMPLIANCE WITH THE SECURITIES ACT.
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(k)
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The
Subscriber is an accredited investor as that term is defined in Rule
501
of the General Rules and Regulations under the Securities Act by
reason of
Rule 501(a)(3).
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(l)
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The
Subscriber understands that an investment in the Shares is a speculative
investment which involves a high degree of risk and the potential
loss of
his entire investment.
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(m)
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The
Subscriber's overall commitment to investments which are not readily
marketable is not disproportionate to the Subscriber's net worth,
and an
investment in the Shares will not cause such overall commitment to
become
excessive.
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(n)
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The
Subscriber has received all documents, records, books and other
information pertaining to the Subscriber’s investment in the Company that
have been requested by the Subscriber.
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(o)
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The
Subscriber represents and warrants to the Company that all information
that the Subscriber has provided to the Company, including, without
limitation, the information set forth herein and attached hereto
or
previously provided to the Company is correct and complete as of
the date
of signature and the date of acceptance of this
Subscription.
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(p)
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The
Subscriber
represents1
and warrants to the Company that the consideration tendered by the
Subscriber to the Company are not and will not be directly or indirectly
derived from activities that may contravene federal, state and
international laws and regulations, including anti-money laundering
laws;
and The OFAC prohibits, among other things, the engagement in transactions
with, and the provisions of services to, certain foreign countries,
territories, entities and individuals. The lists of OFAC prohibited
countries, territories, persons and entities can be found on the
OFAC
website. The Subscriber
hereby
represents and warrants, to the best of its knowledge, that none
of the
Subscriber, any person controlling, controlled by, or under common
control
with, the Subscriber, any person having a beneficial interest in
the
Subscriber, or any person for whom the Subscriber is acting as agent
or
nominee in connection with this investment is: a country, territory,
individual or entity named on an OFAC list, or is an individual or
entity
that resides or has a place of business in a country or territory
named on
such lists, a senior foreign political figure2,
or any immediate family member3
or
close associate4
of
a senior foreign political figure within the meaning of the U.S.
Department of Treasury’s Guidance on Enhanced Scrutiny for Transactions
That May Involve the Proceeds of Foreign Official Corruption5
and as referenced in the USA Patriot Act of 2001;6
or
a "foreign shell bank"7
and does not transact business with a "foreign shell bank." The Subscriber
agrees to promptly notify the Company should the Subscriber become
aware
of any change in the information set forth in these representations.
The
Subscriber
understands that, by law, the Company may be obligated to "freeze
the
account" of such Subscriber, either by prohibiting additional amounts,
declining any redemption requests and/or segregating the assets in
the
account in compliance with governmental regulations, and the Company
may
also be required to report such action and to disclose the Subscriber’s
identity to OFAC. The Subscriber understands that the Company may
not
accept any contributed amounts from the Subscriber if the Subscriber
cannot make the representation set forth above and the Company may
return
any amounts to Subscriber if the information provided to the Company
is
incomplete or is deemed suspicious. The Subscriber represents and
warrants
that the acceptance of the Subscriber's Subscription Agreement together
with the appropriate remittance will not breach any applicable anti-money
laundering rules and regulations. The Subscriber undertakes to provide
verification of its identity reasonably satisfactory (on a confidential
basis), to the Company and/or any entity acting on the Company’s behalf in
respect of the acceptance of subscriptions, promptly on
request.
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1
The
Subscriber should check the U.S. Treasury Department’s Office of Foreign Assets
Control ("OFAC") website at ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇
before
making the representations.
2
A
“senior
foreign political figure” is defined as a current or former official in the
executive, legislative, administrative, military or judicial branches of
a
non-U.S. government (whether elected or not), a senior official of a major
non-U.S. political party, or a senior executive of a non-U.S. government-owned
corporation. In addition, a “senior foreign political figure” includes any
corporation, business or other entity that has been formed by, or for the
benefit of, a senior foreign political figure.
3
“Immediate
family” of a senior foreign political figure typically includes the figure’s
parents, siblings, spouse, children and in-laws.
4
A
“close
associate” of a senior foreign political figure is a person who is widely and
publicly known to maintain an unusually close relationship with the senior
foreign political figure, and includes a person who is in a position to conduct
substantial domestic and international financial transactions on behalf of
the
senior foreign political figure.
5
Please
see
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇
for a
more extensive discussion of the referenced terms and definitions.
6
The
Uniting and Strengthening America by Providing Appropriate Tools Required
to
Intercept and Obstruct Terrorism Act of 2001, Pub. I. No. 107-56
(2001).
7
A
“foreign
shell bank” is a foreign bank that does not have a physical presence in any
country.
4
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(q)
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The
Subscriber is aware that no federal or state agency has (i) made
any
finding or determination as to the fairness of this investment, (ii)
made
any recommendation or endorsement of the Shares or the Company, or
(iii)
guaranteed or insured any investment in the Shares or any investment
made
by the Company.
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(r)
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The
Subscriber understands that the price of the Shares offered hereby
bear no
relation to the assets, book value or net worth of the Company and
were
determined arbitrarily by the Company. The Subscriber further understands
that there is a substantial risk of further dilution on his or its
investment in the Company.
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4.0
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The
Company represents and warrants to the Subscriber as
follows:
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4.1
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Organization
of the Company. The Company is a corporation duly organized and validly
existing and in good standing under the laws of the State of Nevada,
and
has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being
conducted.
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4.2
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Authority.
(a) The Company has the requisite corporate power and authority to
enter
into and perform its obligations under this Agreement and to issue
the
Shares; (b) the execution and delivery of this Agreement by the Company
and the consummation by it of the transactions contemplated hereby
and
thereby have been duly authorized by all necessary corporate action
and no
further consent or authorization of the Company or its Board of Directors
is required; and (c) this Agreement has been duly executed and delivered
by the Company and constitutes a valid and binding obligation of
the
Company enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable
principles of general application.
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4.3
|
Share
Capitalization. As of the date of acceptance of this Subscription,
the
authorized capital stock of the Company consists of 100,000,000 shares
of
common stock. All the outstanding shares are validly issued and are
fully
paid and nonassessable. The Common Stock has a par value US$0.00001
per
share (the “Common Stock”). Par Value is a nominal value that is a vestige
of creditors’ rights laws that was arbitrarily assigned to the shares of
Common Stock for purposes of compliance with applicable state law
at the
date of the Company’s incorporation. It bears no direct relationship to
the market value of the stock, or the Purchase Price of the Common
Stock,
or any ultimate sale or disposition value which may be derived from
the
Common Stock.
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4.4
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SEC
Documents. As of their respective dates, the Company’s SEC Documents
complied in all material respects with the requirements of the Securities
Act or the Exchange Act, as the case may be, and other federal, state
and
local laws, rules and regulations applicable to such SEC Documents,
and
none of the SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents comply as
to form
and substance in all material respects with applicable accounting
requirements and the published rules and regulations of the Securities
and
Exchange Commission (the “SEC”)
or other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis during
the
periods involved (except (a) as may be otherwise indicated in such
financial statements or the notes thereto or (b) in the case of unaudited
interim statements, to the extent they may not include footnotes
or may be
condensed or summary statements) and fairly present in all material
respects the financial position of the Company as of the dates thereof
and
the results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end
audit
adjustments).
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5
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4.5
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Exemption
from Registration; Valid Issuances. The sale and issuance of the
Shares,
on the basis of the representations and warranties of the Subscriber
set
forth herein, may and shall be properly issued by the Company to
the
Subscriber pursuant to Section 4(2), Regulation S and/or any applicable
U.S state law. When issued and paid for as herein provided, the Shares
shall be duly and validly issued, fully paid, and nonassessable.
Neither
the sales of the Shares pursuant to, nor the Company's performance
of its
obligations under, this Agreement shall (a) result in the creation
or
imposition of any liens, charges, claims or other encumbrances upon
the
Shares or any of the assets of the Company, or (b) entitle the other
holders of the Common Stock of the Company to preemptive or other
rights
to subscribe to or acquire the Common Stock or other securities of
the
Company.
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4.6
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No
General Solicitation or Advertising in Regard to this Transaction.
Neither
the Company nor any of its affiliates nor any person acting on its
or
their behalf (a) has conducted or will conduct any general solicitation
(as that term is used in Rule 502(c) of Regulation D) or general
advertising with respect to any of the Shares, or (b) made any offers
or
sales of any security or solicited any offers to buy any security
under
any circumstances that would require registration of the Common Stock
under the Securities Act.
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4.7
|
No
Conflicts. The execution, delivery and performance of this Agreement
by
the Company and the consummation by the Company of the transactions
contemplated hereby, including without limitation the issuance of
the
Shares, do not and will not (a) result in a violation of the Certificate
or By-Laws of the Company or (b) conflict with, or constitute a material
default (or an event that with notice or lapse of time or both would
become a material default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material
agreement, indenture, instrument or any "lock-up" or similar provision
of
any underwriting or similar agreement to which the Company is a party,
or
(c) result in a violation of any federal, state, local or foreign
law,
rule, regulation, order, judgment or decree (including federal and
state
securities laws and regulations)applicable to the Company or by which
any
property or asset of the Company is bound or affected (except for
such
conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the
aggregate, have a material adverse effect on the business, operations,
properties, prospects or condition (financial or otherwise) of the
Company) nor is the Company otherwise in violation of, conflict with
or in
default under any of the foregoing. The Company is not required under
U.S.
federal, state or local law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with,
any
court or governmental agency in order for it to execute, deliver
or
perform any of its obligations under this Agreement or issue and
sell the
Common Stock in accordance with the terms hereof (other than any
SEC, NASD
or state securities filings that may be required to be made by the
Company
subsequent to the Closing); provided that, for purposes of the
representation made in this sentence, the Company is assuming and
relying
upon the accuracy of the relevant representations and agreements
of the
Subscriber herein.
|
|
5.1
|
Trading.
The Company intends to apply to list the Shares for trading on a
“Designated Offshore Securities Market” as such term is defined in Rule
902(b) under Regulation S promulgated under the Securities Act, provided,
however that any and all determinations regarding such listing shall
be
made solely by the Company’s Board of Directors and the respective
regulatory authorities for such markets. The Subscriber acknowledges
that
listing and facilitation of trading of Company shares is dependent
on
market regulatory requirements and is subject to determinations of
third
party regulatory authorities and therefore there can be no assurance
that
the Company will be able to register or facilitate the trading of
the
Shares on any market at any time.
|
|
6.1
|
Indemnity.
The Subscriber agrees to indemnify and hold harmless the Company,
its
officers and directors, employees and its affiliates and their respective
successors and assigns and each other person, if any, who controls
any
thereof, against any loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all expenses whatsoever 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 or failure by
the
Subscriber to comply with any covenant or agreement made by the Subscriber
herein or in any other document furnished by the Subscriber to any
of the
foregoing in connection with this
transaction.
|
6
|
6.2
|
Modification.
Neither this Agreement nor any provisions hereof shall be modified,
discharged or terminated except by an instrument in writing signed
by the
party against whom any waiver, change, discharge or termination is
sought.
|
|
6.3
|
Notices.
Any notice, demand or other communication which any party hereto
may be
required, or may elect, to give to party hereto shall be sufficiently
given if (a) sent by registered or certified mail, return receipt
requested, addressed to such address as provided herein, (b) Sent
by
internationally recognized courier with confirmation of delivery
or
evidence of refusal; or (c) delivered personally at such address.
In the
case of the Company, all notices shall be deemed given two business
days
after mailing to the Subscriber; and in the case of the Subscriber,
all
notices shall be deemed given to the Company upon written confirmation
of
receipt by the Company. The Company may give notice of acceptance
of this
Subscription by verbal advice, e-mail or fax to any address or phone
number provided to the Company by the Subscriber on the Signature
page
below.
|
|
6.4
|
Counterparts.
This Agreement may be executed through the use of separate signature
pages
or in any number of counterparts and by facsimile, and each of such
counterparts shall, for all purposes, constitute one agreement binding
on
all parties, notwithstanding that all parties are not signatories
to the
same counterpart. Signatures may be
facsimiles.
|
|
6.5
|
Binding
Effect. Except as otherwise provided herein, this Agreement shall
be
binding upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and
assigns.
If the Subscriber is more than one person, the obligation of the
Subscriber shall be joint and several and the agreements, representations,
warranties and acknowledgments herein contained shall be deemed to
be made
by and be binding upon each such person and his heirs, executors,
administrators and successors. The representations and warranties
of the
Subscriber shall survive the execution and delivery hereof and the
Closing.
|
|
6.6
|
Entire
Agreement. This Agreement and the documents referenced herein contain
the
entire agreement of the parties and there are no representations,
covenants or other agreements except as stated or referred to herein
and
therein.
|
|
6.7
|
Assignability.
This Agreement is not transferable or assignable by the Company or
the
Subscriber.
|
|
6.8
|
Applicable
Law. This Agreement shall be governed by and construed in accordance
with
the laws of the State of New York, without giving effect to conflicts
of
law principles. The invalidity or unenforceability of any provision
of
this Agreement shall not affect the validity or enforceability of
any
other provision of this Agreement. All disputes and controversies
arising
out of or relating to this Agreement shall be finally settled and
binding
under the Rules of International Commercial Dispute Resolution of
the
American Arbitration Association (“ICDR”). The place of arbitration shall
be New York. The Arbitration shall be conducted in English by a single
arbitrator appointed in accordance with the ICDR rules. Any award,
verdict
or settlement issued under such arbitration may be entered by any
party
for order of enforcement by any court of competent jurisdiction.
The
arbitrator shall have no power to take interim measures he or she
deems
necessary, including injunctive relief and measures for the protection
or
conservation of property.
|
|
6.9
|
Pronouns.
The use herein of the masculine pronouns "him" or "his" or similar
terms
shall be deemed to include the feminine and neuter genders as well
and the
use herein of the singular pronoun shall be deemed to include the
plural
as well.
|
[
Signature Page Follows ]
7
IN
WITNESS WHEREOF, the Subscriber has executed this Agreement for the Subscription
of Shares:
US$_____
Per Share
Common
Stock
(Regulation
S)
Purchase
of Shares consisting of the following:
Total
Shares Purchased:
_____________________________________________________________________
Total
Purchase Price:
_______________________________________________________________________
SUBSCRIBER:
Print
Full Legal Name:
______________________________________________________________________________
Address:
________________________________________________________________________________________
_______________________________________________________________________________________________
Telephone
(with country code):
_______________________________________________________________________
Fax
Number:
_____________________________________________________________________________________
E-mail:
__________________________________________________________________________________________
Address
for Notices (if different from above)
_____________________________________________________________
_______________________________________________________________________________________________
Permanent
Address (if different from above)
_____________________________________________________________
_______________________________________________________________________________________________
Legal
form if an entity (trust, corporation, partnership, etc.):
__________________________________________________
Jurisdiction
of organization if an entity:
_________________________________________________________________
Jurisdiction
of registration and regulation if a bank:
________________________________________________________
Anti-money
laundering documentation: Attach copy of a valid passport
(notarized as a true copy or certified by a lawyer)
and a recent utility ▇▇▇▇ showing the name of the Subscriber and the
subscription address of record (notarized as a true copy or certified by a
lawyer). For corporate entities, please deliver certified copies of charter
documents and individual due diligence information for all officers, directors
and all beneficial owners who have the right to vote the Shares or power of
disposition over the Shares.
By
(Signature):
Print
Name:
The
Company hereby accepts the above application for subscription of the Shares
as
of the ________
day of ______________, 2008:
4C
CONTROLS INC.
By:
Name:
Title:
8