NEXT 1 INTERACTIVE, INC. A Maximum of US$1,500,000 of Units comprised of one (1) share of Common Stock and one (1) warrant to purchase one (1) share of Common Stock SUBSCRIPTION AND INVESTMENT REPRESENTATION AGREEMENT
Memorandum
No.___________________
Name
of Offeree _____________________
NEXT
1
INTERACTIVE,
INC.
A
Maximum of US$1,500,000 of Units comprised
of one (1) share of Common Stock and one
(1)
warrant to purchase one (1) share of
Common
Stock
SUBSCRIPTION
AND
INVESTMENT
REPRESENTATION AGREEMENT
Jesup
& ▇▇▇▇▇▇ Securities Corporation
Units
comprised of (i) one (1) share of common stock, par value $0.00001 per share
(the “Common
Stock”)
and (ii) one (1) warrant to purchase one (1) share of Common Stock,
(collectively the
“Unit”
or “Units”)
(Except
as otherwise noted, all references to “dollars” or “$” are in United States
dollars).
The
undersigned, ___________________________________________ (the “undersigned” or
the “Investor”), hereby
subscribes for the purchase of Units of Next 1 Interactive, Inc. Next
1, a Nevada corporation (“Next 1”), in the
aggregate amount of $___________. The undersigned
herewith submits the undersigned’s check or effects a wire transfer of
immediately available funds in the amount of $_________ in full
payment for such Units (the “Subscription
Price”). In exchange for such payment of the Subscription
Price, the undersigned shall receive from the Next 1 ________ amount of
Units.
The
undersigned understands that (i) Next 1 is offering up to $1,500,000 in Units,
(ii) there is a $250,000 minimum amount of Units that must be sold to complete
the offering, (iii) the offering and sale of the Units is being made on best
efforts basis by Jesup & ▇▇▇▇▇▇ Securities Corporation (“Jesup”), as placement
agent, (iv) Jesup or its affiliates shall be receiving commissions equal to
_10__% of the aggregate purchase price of the Units purchased by the
undersigned.
The
undersigned hereby agrees to send payment of the $____________ Subscription
Price either:
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a.
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by
mailing a check, payable to “▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP-Attorney Trust Account” – to ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. - Partner,
or
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b.
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wiring
payment of the Subscription Price to the account set forth
below
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Name of
Bank: Wachovia Bank, N.A.
Address
of Bank: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
Account
Name: ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP—Attorney Trust Account
Account
No.: 2000013292968
ABA
No.: ▇▇▇▇▇▇▇▇▇
Reference:
Next 1 Interactive, Inc., Inc.
In either
case, the undersigned agrees to execute this Subscription and Investment
Representation Agreement and mail same to Jesup & ▇▇▇▇▇▇ Securities
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director of Corporate Finance.
Consummation
of the sale of the Securities to the undersigned and to all other Investors in
connection with the offering of a maximum of $1,500,000 of Units shall be
completed on or before September 30th ,
2009 (the “Closing Date”),
unless such Closing Date shall be extended by mutual agreement of the Company
and Jesup.
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1.
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Certain
Representations of the Subscriber
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In
connection with, and in consideration of, the sale of the Securities to the
undersigned, the undersigned hereby represents and warrants to the Company and
its officers, directors, employees, agents and shareholders that the
undersigned:
(a) Has
received and is familiar with (i) a copy of the Next 1’s Private
Placement Memorandum dated August 31, 2009 in connection with Next
1’s offering of up to 60 Units in the amount of $25,000 each comprised of
$25,000 principal amount Units and three (3) year Warrants with an exercise
price of $2,00 for Next 1 Common Stock and (ii) such other
information as the undersigned has received from Next 1 and Jesup upon request
(collectively, the “Next 1
Materials”).
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(b) Has
had an opportunity to review and ask questions of an officer of Next 1
concerning the Next 1 Materials and desires no further information respecting
such Next 1 Materials.
(c) Realizes
that Next 1 has incurred losses since its inception and must raise additional
funds to support its operations.
(d) Realizes
and accepts the personal financial risk attendant to the fact that that purchase
of the Units represents a speculative investment involving a high degree of
risk, and should not be purchased by any persons not prepared to lose their
entire investment.
(e) Can
bear the economic risk of an investment in the Units for an indefinite period of
time, can afford to sustain a complete loss of such investment, has no need for
liquidity in connection with an investment in the Units, and can afford to hold
the Units indefinitely.
(f) Realizes
that there will be a limited market for the Units, and that there are
significant restrictions on the transferability of such Units.
(g) Realizes
that the Units have not been registered for sale under the Securities Act of
1933, as amended (the “Act”), or applicable
state securities laws (the “State Laws”), and they may be sold only pursuant to
registration under the Act and State Law, or an opinion of counsel that such
registration is not required.
(h) Is
experienced and knowledgeable in financial and business matters, capable of
evaluating the merits and risks of investing in the Units and does
not need or desire the assistance of a knowledgeable representative to aid in
the evaluation of such risks (or, in the alternative, has a knowledgeable
representative whom such investor intends to use in connection with a decision
as to whether to purchase the Units).
(i) Realizes
that (a) there are substantial restrictions on the transfer of the Units; (b)
there is not currently a public market for the Units, and it is unlikely that in
the future there will exist a public market for the Units, and accordingly, for
the above and other reasons, the undersigned may not be able to liquidate an
investment in such securities for an indefinite period.
2. REPRESENTATIONS AND WARRANTIES OF
NEXT 1. Next 1 represents and warrants to and agrees with Investor, as
follows:
(a) The
Next 1 Materials as of their respective dates do not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
(b) Next 1 is authorized to issue
200,000,000 shares of its Common Stock. As of the date hereof, an aggregate of
27,264,727 shares of Common Stock are issued and outstanding as of its last
quarterly filing.
(c) All
of the outstanding shares of capital stock of Next 1 has been duly authorized
and validly issued, is fully paid and non-assessable.
(d) Next
1 has the requisite corporate power and authority to enter into and execute,
deliver and perform their obligations under this Agreement, the Units and the
Warrants (collectively, the “Transaction
Documents”), including, without limitation to to permit the exercise of
such Warrants into Common Stock of Next 1. Each of the Transaction Documents has
been duly and validly authorized by Next 1 and, when executed and delivered by
Next 1, will constitute a valid and legally binding agreement of Next 1,
enforceable against Next 1 in accordance with their terms except as the
enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally or
(B) general principles of equity and the discretion of the court before
which any proceeding therefore may be brought (regardless of whether such
enforcement is considered in a proceeding at law or in equity) (collectively,
the "Enforceability
Exceptions").
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(e) The
Units have been duly authorized and, when issued upon payment thereof in
accordance with this Agreement, will have been validly issued, fully paid and
nonassessable. The stockholders of Next 1 have no preemptive or
similar rights with respect to the Common Stock.
(f) The
execution, delivery and performance by Next 1 of the Transaction Documents and
the consummation by Next 1 of the transactions contemplated thereby and the
fulfillment of the terms thereof will not violate, conflict with or constitute
or result in a breach of or a default under (i) the articles of
incorporation of Next 1 or the bylaws of Next 1 (or similar organizational
document) or (ii) any statute, judgment, decree, order, rule or regulation
of any court or governmental agency or other body applicable to Next 1or any of
its respective properties or assets.
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3.
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RIGHT
OF FIRST OFFER
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For a period of 12 months from
the date hereof, the Investor shall be given not less than ten business days
prior written notice of any proposed sale by Next 1 of its common stock or other
securities or equity linked debt obligations, except in connection with (i) full
or partial consideration in connection with a strategic merger, acquisition,
consolidation or purchase of substantially all of the securities or assets of
corporation or other entity which holders of such securities or debt are not at
any time granted registration rights, (ii) Next 1’s issuance of securities in
connection with strategic license agreements and other partnering arrangements
so long as such issuances are not for the purpose of raising capital and which
holders of such securities or debt are not at any time granted registration
rights, (iii) Next 1’s issuance of Common Stock or the issuances or grants of
options to purchase Common Stock to employees, directors, and consultants, (iv)
securities upon the exercise or exchange of or conversion of any securities
exercisable or exchangeable for or convertible into shares of Common Stock
issued and outstanding on the date of this Agreement and (v) as a result of the
exercise of Warrants which are granted or issued pursuant to this Agreement
(collectively the foregoing are “Excepted
Issuances”). The Investors who exercise their rights pursuant
to this Section 3 shall have the right during the ten business days following
receipt of the notice to purchase in the aggregate such offered common stock,
debt or other securities in accordance with the terms and conditions set forth
in the notice of sale in the same proportion to each other as their purchase of
Units in the Next 1 Materials. In the event such terms and conditions
are modified during the notice period, the Investors shall be given prompt
notice of such modification and shall have the right during the ten business
days following the notice of modification to exercise such right.
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4.
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Investment
Intent
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The
undersigned has been advised that the Units have not been registered under the
Act or relevant State Laws but are being offered, and will be offered, and sold
pursuant to exemptions from the Act and State Laws, and that Next 1’s reliance
upon such exemption is predicated in part on the undersigned’s representations
contained herein. The undersigned represents and warrants that the
Units are being purchased for the undersigned’s own account and for long term
investment and without the intention of reselling or redistributing the Units;
that the undersigned has made no agreement with others regarding any of the
Units; and that the undersigned’s financial condition is such that it is not
likely that it will be necessary for the undersigned to dispose of any of the
Units in the foreseeable future. The undersigned is aware that (1)
there is presently no public market for the Units, and in the view of the
Securities and Exchange Commission a purchase of securities with an intent to
resell by reason of any foreseeable specific contingency or anticipated change
in market values, or any change in the liquidation or settlement of any loan
obtained for the acquisition of any of the Units and for which the Units were or
may be pledged as security would represent an intent inconsistent with the
investment representations set forth above, and (2) the transferability of the
Units is restricted and (a) requires the written consent of Next 1, and (b) will
be further restricted by a legend placed on the certificate(s) representing the
Units containing substantially the following language:
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The
securities represented by this certificate have not been registered under either
the Securities Act of 1933 or applicable state securities laws and may not be
sold, transferred, assigned, offered, pledged or otherwise distributed for value
unless there is an effective registration statement under such Act and such laws
covering such securities, or Next 1 receives an opinion of counsel acceptable to
Next 1 stating that such sale, transfer, assignment, offer, pledge or other
distribution for value is exempt from the registration and prospectus delivery
requirements of such Act and such laws.
The
undersigned further represents and agrees that if contrary to the undersigned’s
foregoing intentions, the undersigned should later desire to dispose of or
transfer any of the Units in any manner, the undersigned shall not do so without
first obtaining (1) an opinion of counsel satisfactory to Next 1 that such
proposed disposition or transfer may be made lawfully without the registration
of such Units pursuant to the Act and applicable State Laws, or (2) registration
of such Units (it being expressly understood that Next 1 shall not have any
obligation to register such Units except as explicitly provided by written
agreement).
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5.
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Residence
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The
undersigned represents and warrants that the undersigned is a bona fide resident of the
State of _________________________ and that the Units are being accepted by the
undersigned in the undersigned’s name solely for the undersigned’s own
beneficial interest and not as nominee for, on behalf of, for the beneficial
interest of, or with the intention to transfer to, any other person, trust or
organization except as specifically set forth in this Agreement).
PARAGRAPH
6 BELOW IS REQUIRED IN CONNECTION WITH EXEMPTIONS FROM THE ACT AND STATE LAWS
BEING RELIED ON BY NEXT 1 WITH RESPECT TO OFFER AND SALE OF THE
UNITS. ALL OF SUCH INFORMATION WILL BE KEPT CONFIDENTIAL AND WILL BE
REVIEWED ONLY BY NEXT 1, THE AGENT, AND THEIR COUNSEL. THE
UNDERSIGNED AGREES TO FURNISH ANY ADDITIONAL INFORMATION WHICH NEXT 1 OR THEIR
COUNSEL DEEMS NECESSARY IN ORDER TO VERIFY THE RESPONSES SET FORTH
ABOVE.
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6.
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Accredited
Status
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The
undersigned represents and warrants as follows (check if
applicable):
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a.
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Accredited Investor:
Individual
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(1)_______
The undersigned is an individual with a net worth, or a joint net worth together
with his or her spouse, in excess of $1,000,000. (In calculating net
worth, you may include equity in personal property and real estate, including
your principal residence, cash, short term investments, stock and
securities. Equity in personal property and real estate should be
based on the fair market value of such property minus debt secured by such
property.)
(2)________
The undersigned is an individual who had an individual income in excess of
$200,000 in each of the prior two years and reasonably expects an income in
excess of $200,000 in the current year; or
(3)________
The undersigned is an individual who had with his/her spouse joint income in
excess of $300,000 in each of the prior two years and reasonably expects an
income in excess of $300,000 in the current year.
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(4)________
The undersigned is a director or executive officer of the Company.
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b.
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Accredited Investor:
Entity
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(1)________
The undersigned is an entity all of whose equity owners meet one of the tests
set forth in a through d above.
(2)________
The undersigned is an entity and is an “Accredited Investor” as defined in Rule
501(a) of Regulation D under the Act. This representation is based on
the following (check one or more, as applicable):
(a)______
The undersigned (or in the case of a trust, the undersigned trustee) is a bank
or savings and loan association as defined in Sections 3(a)(2) and 3(a)(5)(A) of
the Act, acting either in its individual or fiduciary capacity.
(b)______
The undersigned is an insurance company as defined in Section 2(13) of the
Act.
(c)_______
The undersigned is 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.
(d)________
The undersigned is 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.
(e)________
The undersigned is an employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974 and either (check one
of more, as applicable):
(i)________
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 advisor; or
(ii)________
the employee benefit plan has total assets in excess of $5,000,000;
or
(iii)________
the plan is a self-directed plan with investment decisions made solely by
persons who are “Accredited Investors” as defined under the 1933
Act.
(f)________
The undersigned is a private business development company as defined in Section
202(a)(22) of the Investment Advisors Act of 1940.
(g)________
The undersigned has total assets in excess of $5,000,000, was not formed for the
specific purpose of acquiring shares of the Company and is one or more of
the following (check one or more, as appropriate):
(i)________an
organization described in Section 501(c)(3) of the Internal Revenue Code;
or
(ii)________
a corporation; or
(iii)________
a Massachusetts or similar business, trust; or
(iv)________
a partnership.
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(h)_________
The undersigned is a trust with total assets exceeding $5,000,000, which was not
formed for the specific purpose of acquiring shares of the Company and whose
purchase is directed by a person who has such knowledge and experience in
financial and business matters that he/she is capable of evaluating the merits
and risks of the investment in the Units. IF
ONLY THIS RESPONSE IS CHECKED, PLEASE CONTACT THE COMPANY TO RECEIVE AND
COMPLETE AN INFORMATION STATEMENT BEFORE THIS SUBSCRIPTION CAN BE CONSIDERED BY
NEXT 1.
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7.
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▇▇▇▇▇▇
in Which Title to the Units and warrants Is To Be
Held
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Please
check one:
______Individual
______Joint
Tenant with Right of Survivorship
______Partnership
______Tenants
in Common
______Corporation
______Other
(Specify_____________________)
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8.
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Miscellaneous
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(a) The
undersigned agrees that the undersigned understands the meaning and legal
consequences of the agreements, representations, and warranties contained
herein; agrees that such agreements, representations and warranties shall
survive and remain in full force and effect after the execution of the Units;
and further agrees to indemnify and hold harmless Next 1, each of their current
and future officers, directors, employees, agents and shareholders from and
against any and all loss, damage or liability due to, or arising out of, a
breach of any agreement, representation or warranty of the undersigned contained
herein.
(b) This
Agreement shall inure to the benefit of and be binding upon Investor, Next
1 and their respective successors and legal representatives. Neither
Next 1, nor any Investor may assign this Agreement or any rights or obligation
hereunder without the prior written consent of the other party.
(c) This
Agreement, together with Transaction Documents, constitutes the entire agreement
among the parties hereto and supersedes all prior agreements, understandings and
arrangements, oral or written, among the parties hereto with respect to the
subject matter hereof and thereof.
(d) If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired
thereby.
(e) THE
VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET
FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PROVISIONS RELATING TO CONFLICTS
OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY. THE PARTIES HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREE THAT ACTIONS, SUITS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT MAY BE BROUGHT ONLY IN STATE OR FEDERAL COURTS
LOCATED IN THE CITY OF NEW YORK, NEW YORK AND HEREBY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS FOR SUCH PURPOSE.
(f) 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.
(g) Facsimile
signatures shall be construed and considered original signatures for purposes of
enforcement of the terms of this agreement.
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SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT
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INDIVIDUAL
SUBSCRIBERS:
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Signature
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Name
(Typed or Printed)
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Street
Address
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City,
State and Zip Code
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Home
Telephone Number
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Social
Security Number
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Tax
Identification Number (for corporations or other
entities)
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Next 1
Interactive, Inc., hereby acknowledges receipt from ________________of such
subscriber’s check in the amount of $
, and accepts this subscription of
Units as of September
, 2009.
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Signature
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Name
(Typed or Printed)
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Title
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