Exhibit 10.10
EXHIBIT "D"
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "Agreement"), effective this _____ day
of February, 1999, between WORLDWIDE WEB NETWORX CORP., a corporation
incorporated under the laws of the State of Delaware (the "Company"), and
__________________________ (the "Subscriber").
R E C I T A L S
A. The Company desires to provide financing for itself by selling to
accredited investors, the Company's 6% Cumulative Convertible Debentures at
$1,000.00 per Debenture (the "Debenture"), a minimum of $1,000,000.00 of
Debentures up to a maximum of $2,500,000.00, unless the Company's Placement
Agent determines, in its discretion, to exercise an over-allotment option of up
to an additional $500,00.00 of Debentures (the "OA Option");
B. The offer shall terminate on the earlier to occur of the sale of all
Debentures or March 15, 1999, unless extended by mutual consent of the Company
and the Placement Agent.
C. Purchase of the Debentures involves significant investment risks.
The Debentures are being offered only to accredited investors as such term is
defined under Regulation D promulgated under the Securities Act of 1933, as
amended (the "Securities Act").
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
1. PURCHASE OF DEBENTURES.
The Company agrees to sell to the Subscriber, and the
Subscriber agrees to purchase from the Company, subject to the terms and
conditions hereinafter set forth in this Agreement, that amount of Debentures
for the aggregate purchase price set forth in the signature page hereof (the
"Purchase Price").
2. PAYMENT OF PURCHASE PRICE.
Concurrently with the delivery of this Agreement, the
Subscriber has delivered a check or made a wire transfer in the amount set forth
in the signature page hereof in payment of the Purchase Price for the
Debentures. Checks shall be made payable, or wired funds shall be sent, to Chase
Manhattan Bank, New York, AC#▇▇▇-▇-▇▇▇▇▇▇, Escrow Incoming Wire Account, Further
Credit: Worldwide Web NetworX Corp., Attn: ▇▇▇▇▇ ▇▇▇▇▇▇.
3. CONDITIONS TO OFFER.
The offer of the Debentures hereby is made subject to the
following conditions: (i) that the Company shall have the right to accept or
reject this subscription in whole or in part, for any reason whatsoever,
notwithstanding tender of payment, upon the Company's belief that the financial
ability of the Subscriber is insufficient to bear the economic risks of this
investment in accordance with Regulation D promulgated under the Securities Act;
(ii) that the Company shall have no obligation to accept any subscription for
any Debentures; and (iii) that the Subscriber agrees to comply with the terms of
this Agreement and the Confidential Term Sheet with Exhibits dated February 23,
1999, as may be amended and supplemented (the "Term Sheet"), which is being
delivered to the Subscriber together with this Agreement, and to execute and
deliver any and all further documents necessary to become a Debenture holder.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Subscriber as
follows:
(a) The Debentures will be, when issued, delivered and paid
for in accordance with this Agreement, duly and validly issued and constitute
valid and binding obligations of the Company, and all corporate action required
to be taken by the Company prior to the issuance and sale of the Debentures to
qualified subscribers has been or, prior to the sale thereof, will have been
taken.
(b) The authorized capital stock of the Company consists of
100,000,000 shares of common stock, par value $.001 per share (the "Common
Stock"), of which approximately 11,035,186 shares are issued and outstanding as
of February 23, 1999, and additional shares of Common Stock in the approximate
amount of 21,750,000 shares will be issued by the Company to certain persons and
entities pursuant to existing agreements between the Company and such persons
and entities, exclusive of the shares of Common Stock to be issued upon the
conversion of the Debentures offered
hereby (the "Shares") and to the Placement Agent in accordance with its agency
agreement with the Company.
(c) The Company is duly incorporated, validly existing and in
good standing as a corporation under the laws of the State of Delaware.
(d) All information from the Company which is included in this
Agreement is accurate and complete as of the date hereof and does not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
5. Representations and Warranties of the Subscriber.
The Subscriber hereby represents, warrants and acknowledges to
the Company as follows:
(a) The Subscriber has read this Agreement and the Term Sheet
and understands that there are risk factors to be considered in connection with
an investment in the Company, certain but not all of which are described in this
Agreement and in the Term Sheet, including but not limited to (i) limited
operating history, no material operations and insignificant revenues to date;
(ii) no assurances of the success of the Company's businesses in the market
place or of any profitability, (iii) no ability of Debenture holders to effect a
change in the Company's Board of Directors; (iv) no audited financial
statements: (v) possible failure of the Company's shareholders to approve
certain transactions with Artra Group Incorporated, which will require the
payment to Artra of a "break-up" fee of $3,400,000, but if approved, ▇▇▇▇▇▇ ▇.
▇▇▇▇, currently the President of the Company, will resign as an officer of the
Company and be employed by Artra and/or a subsidiary thereof; (vi) possible
inability to repay any outstanding obligations including the Debentures if not
converted; (vii) no escrow of proceeds except as described in the Term Sheet;
(viii) need for additional capital which may include the immediate commencement
of another private placement offering of the Company's securities which may
result in further dilution to holders who convert their Debentures with no
assurances that any such offering or any significant additional capital which
may be required by the Company will be available, or if available, on terms
satisfactory to the Company; (ix) potential conflicts of interest between
members of management and the Company with no policy established for conflict
resolution; reliance upon management to resolve conflicts; (x) significant
dilution to investors who convert their Debentures upon such conversion due to
outstanding obligations of the Company to issue additional shares of
Common Stock which are currently estimated at approximately 21,750,000 shares;
and (xi) no assurance that the Registration Statement, as defined herein, will
be declared effective by the Securities and Exchange Commission ("SEC").
(b) The Subscriber and its advisors, if any, has had an
opportunity to ask questions of, and receive answers from the officers and/or
directors of the Company acting on its behalf concerning the terms and
conditions of the offering and to obtain additional information, to the
extent that the Company possesses such information or can acquire it without
unreasonable effort or expense, necessary to verify the accuracy of the
information furnished; and has availed itself of such opportunity to the
extent it considers appropriate in order to permit it to evaluate the merits
and risks of an investment in the Company. The Subscriber and its advisors
shall have the right to rely on the Company's representations and warranties
contained in Section 3 herein; however, the Subscriber acknowledged that, in
making the decision to purchase the Debentures, it has relied solely upon
independent investigations made by it and not upon any representations made
by the Company with respect to the Company or the Debentures other than those
representations expressly set forth in Section 3 herein.
(c) The Subscriber understands that no United States or
other governmental or state agency has passed on or made any recommendation
or endorsement of the Debentures or on the merits thereof.
(d) The Subscriber understands and acknowledges that
the Debentures are being offered and sold in reliance upon specific
exemptions from the registration requirements of Federal and state securities
laws and that the Company is relying upon the truth and accuracy of, and the
Subscriber's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Subscriber set forth herein in
order to determine the availability of such exemptions and the eligibility of
the Subscriber to acquire the Debentures.
(e) The Subscriber is acquiring the Debentures pursuant to
this Agreement and the Term Sheet for its own account and, if required by any
applicable state securities law, for investment
purposes only and with no view to the distribution thereof, within the
meaning of such law.
(f) The Subscriber realizes that the Debentures are
speculative, illiquid and involve a high degree of risk, including the risks
of receiving no return on the investment and of losing its entire investment
in the Company.
(g) The Subscriber is able to bear the economic risk of
its investment in the Debentures, including the total loss of such investment.
(h) The Subscriber believes that subscribing for the
Debentures pursuant to the terms of this Agreement is an appropriate and
suitable investment for the Subscriber.
(i) The Subscriber is experienced and knowledgeable in
financial and business matters, and is capable of evaluating the merits and
risks of purchasing the Debentures of the Company.
(j) If the Subscriber is a corporation, partnership, trust or
other entity, (i) it is authorized and qualified to become a Debenture holder,
and authorized to make its investment in the Company; (ii) it has not been
formed for the purpose of acquiring an interest in the Company; (iii) it has not
been in existence less than 90 days prior to the date hereof; and (iv) the
person signing this Agreement on behalf of such entity has been duly authorized
by such entity to do so.
(k) The Subscriber is a resident of the State of
________________.
(l) The Subscriber is an "accredited investor" as defined in
Rule 501 of Regulation D under the Securities Act and (check all that apply):
____ (i) A natural person whose individual net worth
(assets less liabilities), or joint net worth with his or her
spouse, exceeds $1,000,000.
____ (ii) A natural person whose individual income
was in excess of $200,000, or whose joint income with his or
her spouse was in excess of $300,000, each of the two most
recent years, and who has a reasonable expectation of reaching
the same income level for the current year.
____ (iii) A bank, insurance company, registered
investment company, business development company, small
business investment company or employee benefit plan.
____ (iv) A savings and loan association, credit
union, or similar financial institution or a registered broker
or dealer.
_____ (v) A private business development company.
_____ (vi) An organization described in Section
501(c)(3) of the Internal Revenue Code with assets in excess
of $5,000,000.
____ (vii) A corporation, Massachusetts or similar
business trust, or partnership with assets in excess of
$5,000,000.
____ (viii) A trust with assets in excess of
$5,000,000.
____ (ix) A director or an executive officer of the
Company.
____ (x) An entity in which all of the equity owners
are accredited investors.
____ (xi) A self-directed ▇▇▇, ▇▇▇▇▇, or similar plan
of which the individual directing the investments qualifies as
an "accredited investor" under one or more of item (i)-(x),
above. Also check the items (s) [(i)-(x)] that applies.
The Company reserves the right to request additional
information from the Subscriber to verify the information represented by the
Subscriber herein.
6. INVESTMENT PURPOSE IN ACQUIRING THE DEBENTURES.
The Subscriber acknowledges that the Debentures have not been
registered under the Securities Act, or applicable state securities laws, and
that such Debentures will be issued to the Subscriber in reliance on exemptions
from the registration requirements of the Securities Act and applicable state
securities laws, based in part on the Subscriber's representations and
undertakings contained herein, including the Subscriber's investment intent and
further understands that it is purchasing the Debentures without being furnished
any offering literature other than this Agreement and the Term Sheet. The
Subscriber has no present intention to divide his participation with others or
to resell or otherwise dispose of all or any part of the Debentures.
7. COMPLIANCE WITH SECURITIES ACT.
The Subscriber agrees that if the Debentures or the Shares
issuable upon conversion thereof are to be sold or transferred by the Subscriber
in the future, the Subscriber will sell or distribute them pursuant to the
requirements of the Securities Act and applicable state securities laws. The
Subscriber agrees that the Subscriber will not transfer any part of the
Debentures and/or the Shares without (i) obtaining an opinion of counsel
satisfactory in form and substance to counsel for the Company to the effect that
such transfer is exempt from the registration requirements under the Securities
Act and applicable state securities laws or (ii) under the required registration
as described herein.
8. RESTRICTIVE LEGEND.
Subscriber agrees that the Company may place a restrictive
legend on the documents representing the Debentures and on the Shares containing
substantially the following language:
THE DEBENTURES [SHARES] REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT FOR DISTRIBUTION, AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH
DEBENTURES [SHARES] MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT UNLESS SOLD
PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS THE SALE IS OTHERWISE EXEMPT
FROM REGISTRATION. THE COMPANY MAY REQUEST A WRITTEN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT REIGSTRATION IS NOT
REQUIRED IN CONNECTION WITH SUCH SALE, PLEDGE OR HYPOTHECATION, OR
OTHER TRANSFER. THIS CERTIFICATE MUST BE SURRENDERED COMPANY OR ITS
TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE, PLEDGE
HYPOTHECATION OR ANY OTHER TRANSFER OF ANY INTEREST IN ANY OF THE
DEBENTURES [SHARES] REPRESENTED BY THIS CERTIFICATE.
9. STOP TRANSFER ORDER.
The Subscriber agrees that the Company may place a stop
transfer order with its registrar and stock transfer agent (if any) covering all
certificates representing the Debentures and the Shares.
10. KNOWLEDGE OF RESTRICTIONS UPON TRANSFER OF THE SECURITIES.
The Subscriber understands that the Securities are not freely
transferable and may in fact be prohibited from sale for an extended period of
time and that, as a consequence thereof, the undersigned must bear the economic
risk of investment in the Securities for an indefinite period of time and may
have extremely limited opportunities to dispose of the Securities.
11. REGISTRATION AND OTHER RIGHTS WITH REGARD TO THE SHARES.
(a) Each Debenture holder who wishes to convert its Debenture
into Shares shall deliver its original Debenture to the Company at its principal
office on a business day having first or simultaneously given written notice via
facsimile to the Company at such principal office on a business day, in the form
attached as Exhibit A to the Debenture, that such holder elects to convert the
Debenture, all in accordance with the terms of the Debenture.
(b) The Debenture shall be convertible into Shares, at any
time commencing on the earlier of (i) the effective date of the registration
statement covering the Shares; or (ii) one hundred twenty (120) days after the
filing of the registration statement covering the Shares.
(c) The principal amount of the Debentures and any accrued but
unpaid interest thereon is convertible into Shares. The number of Shares to be
received by the Debenture holder shall be determined as set forth in the Term
Sheet and the Debenture issued to the Subscriber.
(d) The Company shall file a registration statement
(the "Registration Statement") covering the resale of all shares of Common Stock
outstanding at the time of such filing, including the Shares (collectively the
"Registrable Securities") no later than sixty (60) days after the Closing Date.
The Company shall use its reasonable best efforts to have the Registration
Statement declared effective within
ninety (90) days after the filing of the registration statement. If the
Registration Statement is not filed within 60 days and/or declared effective
within 90 days from the date of filing due to the failure of the Company to
exercise reasonable diligence, then the Company shall pay each Debenture holder
2% of the face amount of the Debenture in cash as liquidated damages for each
calendar month delayed (if less than one full calendar month then the liquidated
damage shall be prorated over the number of days delayed). The liquidated damage
provision applies both to the filing of the Registration Statement and the
effective date thereof so that a 2% penalty may be due for late filing and
another 2% penalty due for late effectiveness.
If the Registration Statement also includes other securities of the
Company which are being sold in an underwritten offering, then the Subscriber
shall, unless otherwise agreed by the Company, offer and sell the Shares
included in such Registration Statement using the same underwriter or
underwriters and, subject to the provisions of this Agreement, on the same terms
and conditions as other securities included in such underwritten offering.
(e) In connection with the filing of the Registration
Statement pursuant to this Section 11, the Company shall:
(i) notify the Subscriber as to the filing and status thereof
prior to the effective date of said Registration
Statement;
(ii) notify such Subscriber promptly after it shall have
received notice of the time when the Registration
Statement becomes effective or any supplement to any
prospectus forming a part of the Registration Statement
has been filed;
(iii) prepare and file without expense to such Subscriber any
necessary amendment or supplement to such Registration
Statement or prospectus as may be necessary to comply with
the Securities Act or advisable in connection with the
proposed distribution of the Shares by such Subscriber;
(iv) take all reasonable steps to qualify the Shares for sale
under the securities or blue sky laws of the state of such
Subscriber's residence as provided in this Agreement and
to register or obtain the approval of any federal or state
authority which may reasonably be
required in connection with the proposed distribution,
except, in each case, in jurisdictions in which the
Company must either qualify to do business or file a
general consent to service of process as a condition of
the qualification of such securities;
(v) notify the Subscriber of any stop order suspending the
effectiveness of the Registration Statement and use its
reasonable best efforts to remove such stop order;
(vi) undertake to keep such registration statement and
prospectus effective for a period of twelve months after
its effective date; and
(vii) furnish to such Subscriber as soon as available, a copy of
each preliminary or final prospectus prepared pursuant to
the foregoing provisions of this section, all in such
quantities as such Subscriber may from time to time
reasonably request.
(f) The Company agrees to pay all costs incurred in connection
with the Registration Statement to be filed pursuant to Section 11 including,
without limitation to the fees and expenses of counsel for the Company, the fees
and expenses of its accountants, and all other costs and expenses incident to
the preparation, printing and filing under the Securities Act of such
Registration Statement, each prospectus and all amendments and supplements
thereto, the costs incurred in connection with the qualification of the Shares
in the Subscriber's state of residence and the costs of supplying a reasonable
number of copies of each preliminary prospectus, final prospectus and any
supplements or amendments thereto to such Subscriber.
(g) The Company part and each Subscriber shall enter into an
appropriate cross-indemnity agreement whereby the Company shall indemnify and
hold harmless the Subscriber against any losses, claims, damages or liabilities
(or actions in respect thereof) arising out of or based upon any untrue
statement or alleged untrue statement of any material fact contained in such
Registration Statement, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading unless such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity with
written information furnished or required to be
furnished to the Company by any such Subscriber, and each such Subscriber shall
indemnify and hold harmless the Company, each of its directors and officers who
have signed the Registration Statement and each person, if any, who controls the
Company, within the meaning of the Securities Act, and the Company's agents and
representatives against any losses, claims, damages or liabilities (or actions
in respect thereof) arising out of or based upon any untrue statement or alleged
untrue statement of any material fact, contained in such Registration statement,
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make statements therein not misleading, if the
statement or omission was made in reliance upon and in conformity with written
information furnished or required to be furnished by such Subscriber expressly
for use in such Registration Statement.
(h) For a period of one (1) year after the effective date of
the registration statement filed pursuant to this Section 11, the Company at its
expense will file such post-effective amendments as may be necessary to make
available for use a prospectus meeting the requirements of the Securities Act.
The Company will cause copies of such prospectus to be delivered to any person
selling the shares of Common Stock as may be required by the Securities Act and
the rules and regulations of the SEC.
12. INDEMNIFICATION.
The Subscriber understands that the Debentures are being
offered without registration under the Securities Act and in reliance upon the
exemptions for transactions by an issuer not involving a public offering, and
upon the provisions of Regulation D promulgated under the Securities Act; that
the availability of such exemption is, in part, dependent upon the truthfulness
and accuracy of the representation made by the Subscriber herein; that the
Company will rely on such representations in accepting any subscription for
Debentures of the Company and that the Company may take such steps as it
considers reasonable to verify the accuracy and truthfulness of such
representations in advance of accepting or rejecting the Subscriber's
subscription. The Subscriber agrees to indemnify and hold the Company harmless
against any damage, loss, expense or cost, including reasonable attorneys' fees,
sustained or incurred as a result of any misstatement or omission on the part of
the Subscriber.
13. RESCISSION RIGHTS FOR FLORIDA SUBSCRIBERS
The Subscriber acknowledges that it is aware that the
securities offered hereby have not been registered under the Florida Securities
and Investor Protection Act by reason of an exemption pursuant to Section
517.061(11) thereof. Unless the securities are registered, they may not be
re-offered for sale or resold in the State of Florida except as a security, or
in a transaction exempt under said Act.
The Subscriber has been advised that sales made pursuant to
Section 517.061(11) of the Florida Securities and Investor Protection Act to
five (5) or more purchasers in such state are voidable by the subscriber either
within three (3) days after the first tender of consideration is made by the
subscriber or within three (3) days after the availability of that privilege is
communicated to the subscriber, whichever occurs later.
14. RIGHT OF WITHDRAWAL FOR PENNSYLVANIA INVESTORS.
SECTION 207(M). "EACH PERSON WHO ACCEPTS AN OFFER TO PURCHASE
SECURITIES EXEMPTED FROM REGISTRATION BY SECTION 203 (D), DIRECTLY FROM THE
ISSUER OR AFFILIATE OF THE ISSUER, SHALL HAVE THE RIGHT TO WITHDRAW HIS
ACCEPTANCE WITHOUT INCURRING ANY LIABILITY TO THE SELLER, UNDERWRITER (IF ANY)
OR ANY OTHER PERSON WITHIN TWO BUSINESS DAYS FROM THE DATE OF RECEIPT BY THE
ISSUER OF HIS WRITTEN BINDING CONTRACT OF PURCHASE, OR, IN THE CASE OF A
TRANSACTION IN WHICH THERE IS NO BINDING CONTRACT OF PURCHASE, WITHIN TWO
BUSINESS DAYS AFTER HE MAKES THE INITIAL PAYMENT FOR THE SECURITIES BEING
OFFERED.
15. AGREEMENT OF PENNSYLVANIA INVESTORS NOT TO SELL.
The undersigned Pennsylvania investor hereby acknowledges and
agrees that as a condition of the availability of the exemption of Section 203
(d) of the Act, he will not sell the securities purchased hereby within 12
months after the date of purchase, except in accordance with Regulation 204.001.
16. REVOCATION.
The Subscriber agrees that it shall not cancel, terminate, or
revoke this Agreement or any agreement of the Subscriber made hereunder, and
that this Agreement shall survive the death or disability of the Subscriber.
17. TERMINATION OF AGREEMENT.
The Subscriber acknowledges having been advised by the Company
that the Company may elect to terminate the offering of the Debentures for any
reason prior to its receipt and acceptance of all proceeds from the sale of all
Debentures offered hereby, including the OA Option. If the Company elects to
cancel this Agreement, provided that it returns to the Subscriber, without
interest thereon and deduction therefrom, all sums paid by the Subscriber, the
offer of the Debentures hereby shall be null and void and of no force and
effect, and no party shall have any rights against any other party hereunder.
18. REPRESENTATIONS TO SURVIVE DELIVERY
The representations, warranties and agreements of the Company
and of the Subscriber contained in this Agreement will remain operative and in
full force and effect and will survive the payment of the Purchase Price
pursuant to Section 2 above and the delivery of the Debentures.
19. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties hereto with respect to the transactions described
in this Agreement and supersedes all prior arrangements or understandings with
respect thereto.
(b) BINDING EFFECT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto, and their
respective heirs, legal representatives, successors and assigns.
(c) THIRD PARTY RIGHTS. Notwithstanding any other provision of
this Agreement, this Agreement shall not create benefits on behalf of any third
party, and this Agreement shall be effective only as between the parties hereto
and their respective successors, heirs, and permitted assigns.
(d) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are for convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement.
(e) NOTICES. Any notice hereunder to or upon either party
hereto shall be deemed to have been duly given for all purposes if (a) in
writing and sent by (i) messenger or an overnight courier service against
receipt, or (ii)
certified or registered mail, postage paid, return receipt requested, or (b)
sent by telegram, telescope, telex or similar electronic means, provided that a
written copy thereof is sent on the same day by postage paid first class mail,
to such party at the following address:
To Subscriber: at its address set forth on the
signature page hereof
To the Company at: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn : ▇▇▇▇▇▇ ▇. ▇▇▇▇, President
or such other address as either party hereto may at any time, or from time to
time, direct by notice given to the other party in accordance with this Section.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance, with the laws of the State of New York and of the
United States of America, without regard to choice of law provisions.
(g) REMEDIES. In the event of any actual or prospective breach
or default by either party hereto, the other party shall be entitled to
equitable relief, including remedies in the nature of rescission, injunction and
specific performance. All remedies hereunder are cumulative and not exclusive,
and nothing herein shall be deemed to prohibit or limit either party from
pursing any other remedy or relief available at law or in equity for such actual
or prospective breach or default, including the recovery of damages.
(h) DISPUTES AND JURISDICTION. Disputes arising under this
Agreement shall be resolved in a federal or state court of general jurisdiction
sitting in the County and State of New York. Each of the parties hereto hereby
irrevocably consents and submits to the jurisdiction of such court.
(i) SEVERABILITY. The provisions hereof are severable and in
the event that any provision of this Agreement shall be determined to be invalid
or unenforceable in any respect by a court of competent jurisdiction, the
remaining provisions hereof shall not be affected, but shall, subject to the
discretion of such court, remain in full force and effect, and any invalid or
unenforceable provision shall be deemed, without further action on the party of
the parties hereto, amended and limited to the extent necessary to render the
same valid and enforceable.
(j) ASSIGNMENT, ETC. This Agreement may not be assigned
without the prior written consent of the parties, and any purported assignment
without such consent shall be void and without effect. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement is not intended, and shall not
be deemed, to create or confer any right or interest for the benefit of any
person not a party hereto.
(k) AMENDMENT. Except as otherwise provided herein, no
amendment of this Agreement shall be valid or effective, unless in writing and
signing by or on behalf of the parties hereto.
(l) WAIVER. No course of dealing or omission or delay on the
part of either party hereto in asserting or exercising any right hereunder shall
constitute or operate as a waiver of any such right. No waiver of any provision
hereof shall be effective, unless in writing and signed by or on behalf of the
party to be charged therewith. No waiver shall be deemed a continuing waiver or
waiver in respect of any other or subsequent breach or default, unless expressly
so stated in writing.
(m) FURTHER ASSURANCES. Each party hereto covenants and agrees
promptly to execute, deliver, file or record such agreements, instruments,
certificates and other documents and to perform such other and further acts as
the other party hereto may reasonably request or as may otherwise be necessary
or proper to consummate and perfect the transactions contemplated hereby.
(n) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original and which together shall
constitute one and the same agreement.
# of Debentures Purchased
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Subscriber Name (Please Print)
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Total Purchase Price
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Subscriber Signature
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Subscriber Signature (if more than one)
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Address
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City State Zip Code
THE COMPANY HEREBY ACCEPTS THE SUBSCRIPTION EVIDENCED BY THIS SUBSCRIPTION
AGREEMENT AND QUESTIONNAIRE:
By:
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Name:
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Title:
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Dated:
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SUBSCRIBER INFORMATION
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(Please print name(s) in which the Debentures are to be issued)
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Taxpayer I.D. or Social Taxpayer I.D. or Social
Security No. Security No. (If more than one investor)
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇ Zip Code
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Telephone Number (include area code)
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Occupation
Check One:
_________ Individual Ownership ___________ Tenants in Common
_________ Joint Tenants (JTWROS) ___________ Corporation
_________ Partnership ___________ Trust
_________ Other
CERTIFICATE OF SIGNATORY
(To be completed if Debentures are being subscribed for by an Entity)
I, _____________________________, am the _____________________
of ______________________________ (the "Entity").
I certify that I am empowered and duly authorized by the Entity to
execute and carry out the terms of the Subscription Agreement and Subscriber
Information and to purchase and hold the Debentures, and certify further that
such Subscription Agreement and Subscriber Information Form has been duly and
validly executed on behalf of the Entity and constitutes a legal and binding
obligation of the Entity.
IN WITNESS WHEREOF, I have set my hand this ___ day of
___________, 1999.
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(Signature)
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(Title)
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(Please Print Name)