YI XIN INTERNATIONAL COPPER, INC. SUBSCRIPTION AGREEMENT
Exhibit
10.2
The
undersigned (hereinafter “Subscriber”) hereby confirms
his/her/its subscription for the purchase of Units (the “Units”) of Yi Xin
International Copper, Inc., a Delaware corporation (the “Company”), at a purchase price
of $25,000 per Unit (the “Per
Unit Purchase Price”) on the terms described herein.
Each Unit
consists of a nonregistered $25,000 principal amount 10% convertible promissory
note maturing one year from the date of issuance or upon the consummation of the
Company’s initial public offering, if sooner (each a “Note” and collectively the
“Notes”) and a
nonregistered warrant to purchase 16,026 shares of the Company’s common stock,
par value $0.001 per share (each a “Warrant”, collectively the
“Warrants”, and
collectively with the Notes, the “Securities”).
The Notes
are convertible, in part or in full, at a conversion price of $0.78 per share
(the “Conversion Price”)
into shares of common stock of the Company (the “Conversion Shares”). Based on
the Conversion Price, 32,051 Conversion Shares are issuable upon the conversion
of the principal amount of each $25,000 Note. The Conversion Price is subject to
adjustment as set forth in the Notes. A copy of a form of the Note is attached
to the Company's Confidential Private Offering Memorandum, dated October 30,
2009 (as amended or supplemented, and together with all documents attached
thereto, the “Offering
Memorandum”) as Exhibit B;
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth for such terms in the Offering Memorandum.
The
Warrants are exercisable, in part or in full, at an exercise price of $0.78 per
share (the “Exercise
Price”), into shares of common stock of the Company (the “Warrant
Shares”). 16,026 Warrant Shares are issuable for each Warrant
issued as part a Unit. The Exercise Price is subject to adjustment as
set forth in the Warrants. A copy of a form of the Warrant is attached to the
Offering Memorandum as Exhibit
C.
Subject
to the terms and conditions set forth in the Notes and the Warrants, the Company
has agreed to provide the holders thereof with “piggyback-registration rights”
with respect to the Warrant Shares and the Conversion Shares, all as provided in
the registration rights agreement a form of which is attached to the Offering
Memorandum as Exhibit
D (the “Registration
Rights Agreement”).
In
connection with this subscription, Subscriber and the Company agree as
follows:
1.
Purchase and Sale of
the Units; Escrow and Closing.
(a) The
Company hereby agrees to issue and to sell to Subscriber, and Subscriber hereby
agrees to purchase from the Company, at, and subject to the occurrence of, a
Closing, Units for the aggregate Purchase Price (herein defined) set forth on
the signature page hereto.
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(b) Subscriber
has hereby (i) delivered to the Company, c/o AFH Holding and Advisory, LLC, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, completed and signed
copies of this Subscription Agreement, the Confidential Purchaser Questionnaire
attached hereto (the “Confidential Purchaser
Questionnaire”), the Registration Rights Agreement and Schedule III to
the Escrow Deposit Agreement identifying an authorized signatory for Subscriber;
and (ii) delivered, and paid concurrently herewith, the aggregate purchase price
(the “Purchase Price”)
set forth on the signature page hereof which amount (A) is equal to the Per Unit
Purchase Price multiplied by such number of Units subscribed for hereunder, and
(B) has been paid in U.S. Dollars by check, subject to collection, to the order
of ______________ or by wire transfer to ______________ for credit to
______________, as Escrow Agent for Yi Xin International Copper, Inc. (wiring
instructions, including account number, on signature page), in each case, with
the name, address and social security number or taxpayer identification number
of Subscriber.
(c) Subscriber
understands that the Company has the unconditional right to accept or reject
this subscription, in whole or in part, for any reason or without a specific
reason, in the sole and absolute discretion of the Company (even after receipt
and clearance of Subscriber's funds). This Subscription Agreement is
not binding upon the Company until accepted in writing by an authorized member
of the Company. In the event that the subscription is rejected, then
Subscriber's subscription funds (to the extent of such rejection) will be
returned promptly in full without interest thereon or deduction
therefrom.
(d) Upon
the Company accepting any subscription, the Company shall deliver to Subscriber
a fully executed Subscription Agreement, and upon a Closing within which
Subscriber's Purchase Price (or a portion thereof) is released from the Escrow
Account, a fully executed Note, Warrant and Registration Rights Agreement, with
respect to that portion of the Purchase Price released from the Escrow
Account. Subscriber understands and acknowledges that this
subscription is part of a private placement by the Company of up to 200 Units,
for an aggregate Purchase Price of up to $5,000,000 (the "Maximum
Amount"). Subscriber understands that payments with respect to
accepted subscription will be held in an escrow account (the "Escrow Account") established
by the Company with Signature Bank as escrow agent (the “Escrow Agent”), and will be
released to the Company as and when and one or more Closings occur, but only
upon the joint written instructions of the Company and Subscriber as provided in
the Escrow Deposit Agreement between the Company and Escrow Agent.
(e) The
Company may hold an initial closing (the “Initial Closing”) at any time
after the receipt of accepted subscriptions for at least 10 Units prior to the
Termination Date (as herein defined). After the Initial Closing,
subsequent closings with respect to additional Units may take place at any time
prior to the Termination Date and with respect to all or any part of the amounts
then held in escrow, all as determined by the Company (each such closing,
together with the Initial Closing, being referred to as a “Closing”). Upon
each Closing, subject to the receipt of written instructions from the Company
and Subscriber, the Escrow Agent will release the subscription amounts subject
to such Closing from the Escrow Account and deliver such amounts to the
Company. For purposes of this Subscription Agreement the term “Termination Date” shall mean
February 16, 2010 or such earlier date on which 200 Units shall have been
sold.
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(f) Subscriber
understand that the Company may terminate the offering or any part thereof for
any reason or for no reason at any time on or prior to the Termination
Date. In the event that the offering is terminated (whether at the
Termination Date or before), the Company and Subscriber shall provide joint
written instructions to the Escrow Agent to release from the Escrow Account all
proceeds then held in the Escrow Account, if any, pursuant to accepted
subscriptions and to promptly refund such funds to Subscriber without interest,
after a deduction of a pro rata portion of costs and expenses incurred by
selling agents of up to $15,000 in the aggregate and an 8% sales commission if a
selling agent assisted in the sale of Securities to Subscriber, to be paid to
the selling agent.
(g) Promptly
upon request by the Company, Subscriber shall execute and deliver to the Company
(or directly to Escrow Agent if so requested by the Company) written
instructions (i) to disburse from the Escrow Account all or a portion of
Subscriber’s subscription funds in connection with a Closing, provided that, if
applicable, all conditions to the use of such funds in connection with a Closing
as set forth in Section 1(h) have been satisfied or waived by Subsriber and/or
(ii) to disburse from the Escrow Account all or a portion of Subscriber’s
subscription funds in connection a termination of the offering, provided that
such written instructions in connection with a termination of the offering
provide for disbursement of such subscription funds in a manner consistent with
the provisions of Section 1(f) of this Subscription Agreement. The
conditions set forth in Section 1(h) are applicable only to disbursements from
escrow that will be used in connection with the transactions described in
Section 1(h) and not all disbursements from escrow in connection with a Closing
are contingent upon the satisfaction of such conditions.
(h) As
described in the Private Offering Memorandum, approximately 80% of the aggregate
amount anticipated to be sold in the Offering is intended to be used for
payments to Newry Invest & Trade, Inc. (“Newry”) in connection with the
purchase of Company stock from Newry and for payments to Mr. Fucan Dong in
connection with his termination. Closings the proceeds of which will
be used to consummate the transactions with Newry or ▇▇. ▇▇▇▇ are contingent
upon satisfaction or waiver of the following conditions: (i) the audit of the
Company’s fiscal 2009 financial statements being completed, (ii) the Company’s
Annual Report on Form 10-K for the year ended December 31, 2009 being filed
with the United States Securities and Exchange Commission, (iii) the Company
otherwise being current with its filing obligations under applicable United
States securities laws; and (iv) a Form 211 having been filed with the Financial
Industry Regulatory Authority by a registered broker/dealer to allow the
initiation or resumption of quotations of the trading price of the Company’s
common stock (the “Conditions”). Any
or all of the Conditions may be waived by Subscriber and the
Company.
2. Representations and
Warranties of Subscriber. Subscriber represents and warrants
to the Company as follows:
(a) Subscriber
is an “accredited investor” as defined by Rule 501 of Regulation D (“Regulation D”) promulgated
under the Securities Act of 1933, as amended (the “Act”), and Subscriber is
capable of evaluating the merits and risks of Subscriber's investment in the
Company and has the ability and capacity to protect Subscriber's own
interests.
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(b) Subscriber
understands that the Securities, the Conversion Shares and the Warrant Shares,
will not be registered under the Act on the grounds that the issuance thereof is
exempt from the registration requirements of the Act by Section 4(2) of the Act
and/or Regulation D promulgated thereunder as a transaction by an issuer not
involving any public offering and that, in the view of the United States
Securities and Exchange Commission (the “SEC”), the statutory basis for
the exception claimed would not be present if the representations and warranties
of Subscriber contained in this Subscription Agreement or the Confidential
Purchaser Questionnaire are untrue or, notwithstanding Subscriber's
representations and warranties, Subscriber currently has in mind acquiring the
Securities for resale or distribution upon the occurrence or non-occurrence of
some predetermined event.
(c) Subscriber
is purchasing the Securities subscribed for hereby, and, upon conversion of the
Notes and/or exercise of the Warrants, will purchase the Conversion Shares
and/or the Warrant Shares for investment purposes for its own account and not
with a view to distribution or resale, nor with the intention of selling,
transferring or otherwise disposing of all or any part thereof for any
particular price, or at any particular time, or upon the happening of any
particular event or circumstances, except selling, transferring, or disposing
the Securities, the Conversion Shares and/or the Warrant Shares in full
compliance with all applicable provisions of the Act, the rules and regulations
promulgated by the SEC thereunder, and applicable state securities laws;
Subscriber understands that an investment in the Securities is not a liquid
investment and that, although the Company is an SEC reporting company, there is
no trading market for its securities.
(d) Subscriber
acknowledges that the Securities, the Conversion Shares and the Warrant Shares
must be held indefinitely unless subsequently registered under the Act or unless
an exemption from such registration is available. Subscriber is aware of the
provisions of Rule 144 promulgated under the Act, which permits limited resale
of securities purchased in a private placement subject to certain limitations
and to the satisfaction of certain conditions. Subscriber acknowledges that the
Company is a former “shell company” as defined by applicable SEC rules and that,
as a result, there are additional limitations on the use of Rule
144.
(e) Subscriber
acknowledges that Subscriber has had the opportunity to ask questions of, and
receive answers from, the Company or any authorized person acting on its behalf
concerning the Company and its business and to obtain any additional
information, to the extent possessed by the Company (or to the extent it could
have been acquired by the Company without unreasonable effort or expense)
necessary to verify the accuracy of the information received by Subscriber. In
connection therewith, Subscriber acknowledges that Subscriber has had the
opportunity to discuss the business, management and financial affairs with the
management or any authorized person acting on the Company’s behalf, as the case
may be. Subscriber has received and reviewed the Offering Memorandum, and all
the information, both written and oral, that Subscriber desires. Without
limiting the generality of the foregoing, Subscriber has been furnished with or
has had the opportunity to acquire, and to review all information, both written
and oral, that Subscriber desires with respect to the business, management,
financial affairs and prospects of the Company. In determining whether to make
this investment, Subscriber has relied solely on Subscriber's own knowledge and
understanding of the Company and its business based upon Subscriber's own due
diligence investigations and the information furnished pursuant to this
paragraph. Subscriber understands that no person has been authorized to give any
information or to make any representations which were not contained in the
Offering Memorandum and Subscriber has not relied on any other representations
or information.
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(f) Subscriber
has all requisite legal and other power, authority and capacity to execute and
deliver this Subscription Agreement and to carry out and perform Subscriber's
obligations under the terms of this Subscription Agreement. This Subscription
Agreement constitutes a valid and legally binding obligation of Subscriber,
enforceable in accordance with its terms, and subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
other general principals of equity, whether such enforcement is considered in a
proceeding in equity or law.
(g) Subscriber
has carefully considered and has discussed with Subscriber's legal, tax,
accounting and financial advisors, to the extent Subscriber has deemed
necessary, the suitability of this investment and the transactions contemplated
by this Subscription Agreement for Subscriber's particular federal, state, local
and foreign tax and financial situation and has independently determined that
this investment and the transactions contemplated by this Subscription Agreement
are a suitable investment for Subscriber. Subscriber has relied solely on such
advisors and not on any statements or representations of the Company or any of
its agents. Subscriber understands that Subscriber (and not the Company) shall
be responsible for Subscriber's own tax liability that may arise as a result of
this investment or the transactions contemplated by this Subscription
Agreement.
(h) This
Subscription Agreement and the Confidential Purchaser Questionnaire accompanying
this Subscription Agreement do not contain any untrue statement of a material
fact or omit any material fact concerning Subscriber. Subscriber has a net worth
and annual gross income as stated in the Confidential Purchaser Questionnaire,
and all of the answers and statements in the Confidential Purchaser
Questionnaire are true and correct.
(i)
There are no actions, suits, proceedings or investigations pending against
Subscriber or Subscriber's assets before any court or governmental agency (nor,
to Subscriber's knowledge, is there any threat thereof) which would impair in
any way Subscriber's ability to enter into and fully perform Subscriber's
commitments and obligations under this Subscription Agreement or the
transactions contemplated hereby.
(j)
Neither the execution, delivery and performance of and compliance with this
Subscription Agreement nor the conversion of the Notes and/or the exercise of
the Warrants, will result in any material violation of, or conflict with, or
constitute a material default under, any of Subscriber's articles of
incorporation, bylaws, or any other charter or governing documents, if
applicable, or any agreement to which Subscriber is a party or by which
Subscriber is bound, nor result in the creation of any mortgage, pledge, lien,
encumbrance or charge against any of the assets or properties of Subscriber, the
Securities, the Conversion Shares or the Warrant Shares.
(k) Subscriber
hereby acknowledges and represents that (i) Subscriber has knowledge and
experience in business and financial matters, prior investment experience,
including investment in securities, (ii) an investment in the Securities is
speculative and involves a high degree of risk and that Subscriber can bear the
economic risk of the purchase of the Securities, including a total loss of
Subscriber's investment, (iii) Subscriber has adequate means of providing for
current needs and personal contingencies and has no need for liquidity in an
investment in the Securities, (iv) Subscriber's overall financial commitment to
investments that are not readily marketable is not disproportionate to
Subscriber's net worth, and Subscriber's investment in the Securities will not
cause an overall commitment to become excessive, and (v) Subscriber has no
reason to anticipate any change in Subscriber's personal circumstances,
financial or otherwise, which may cause Subscriber to attempt to resell or
transfer the Securities.
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(l)
Subscriber acknowledges that he/she/it has carefully reviewed and considered the
risk factors discussed in the “Risk Factors” section of the Offering Memorandum
prior to making an investment decision.
(m) Subscriber
recognizes that no federal, state or foreign agency has recommended or endorsed
the purchase of the Securities.
(n) Subscriber
is aware that the Securities, the Conversion Shares, and the Warrant
Shares are and will be, when issued, “restricted securities” as that term is
defined in Rule 144 promulgated under the Act.
(o) Subscriber
understands that the Securities, any and all certificates representing the
Conversion Shares and the Warrant Shares (when issued), and any and all
securities issued in replacement thereof or in exchange therefore shall bear the
following legend or one substantially similar thereto, which Subscriber has read
and understands:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR
ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS
WHICH, IN THE OPINION OF COUNSEL FOR THIS CORPORATION, IS
AVAILABLE.”
In addition, the Securities and/or the
certificates representing Conversion Shares and the Warrant Shares (when
issued), and any and all securities issued in replacement thereof or in exchange
therefore, shall bear such legend as may be required by the securities laws of
the jurisdiction in which Subscriber resides.
(p) Because
of the restrictions imposed on resale, Subscriber understands that the Company
shall have the right to note stop-transfer instructions in its stock transfer
records or other securities transfer records, and Subscriber has been informed
of the Company's intention to do so. Subscriber agrees that sales, transfers, or
any other dispositions of the Securities, the Conversion Shares or the Warrant
Shares by Subscriber, if any, will be in compliance with the Act and all
applicable rules and regulations promulgated thereunder.
(q) Subscriber
acknowledges that Subscriber has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of an
investment in the Securities, the Conversion Shares and the Warrant Shares and
of making an informed investment decision. Subscriber has read the Offering
Memorandum (including the business and risk factors sections and financial
statements provided herein) or Subscriber has employed the services of an
attorney and/or accountant to read all of the documents furnished or made
available by the Company both to Subscriber and to all other prospective
investors in the Securities to evaluate the merits and risks of such an
investment on Subscriber’s behalf and understands and has evaluated the risks
and the terms of the offering made hereby.
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(r) Subscriber
represents that: (i) Subscriber is able to bear the economic risks of an
investment in the Securities, the Conversion Shares and the Warrant Shares and
to afford the complete loss of Subscriber’s investment, and (ii) (A) Subscriber
could be reasonably assumed to have the capacity to protect his/her/its own
interests in connection with this subscription; or (B) Subscriber has a
pre-existing personal or business relationship with the Company or any affiliate
thereof of such duration and nature as would enable a reasonably prudent
purchaser to be aware of the character, business acumen and general business and
financial circumstances of the Company or such affiliates and is otherwise
personally qualified to evaluate and assess the risks, nature and other aspects
of this subscription.
(s) Subscriber
represents that the address set forth on the signature page hereof is
Subscriber's principal residence (or, if Subscriber is a company, partnership or
other entity, the address of its principal place of business).
(t) Subscriber
represents, warrants and agrees that Subscriber is purchasing the Securities,
and, upon conversion and/or exercise thereof, will purchase the Conversion
Shares and/or the Warrant Shares, for Subscriber's own account and not, in whole
or in part, for the account of any other person; Subscriber is purchasing the
Securities and, upon conversion and/or exercise thereof, will purchase the
Conversion Shares and the Warrant Shares, for investment and not with a view to
resale or distribution; and that Subscriber has not formed any entity for the
purpose of purchasing the Securities.
(u) Subscriber
understands that the Company has the unconditional right to accept or reject
this subscription, in whole or in part, for any reason or without a specific
reason, in the sole and absolute discretion of the Company (even after receipt
and clearance of Subscriber's funds). This Subscription Agreement is not binding
upon the Company until accepted in writing by an authorized member of the
Company. In the event that the subscription is rejected, then Subscriber's
subscription funds (to the extent of such rejection) will be returned promptly
in full without interest thereon or deduction therefrom.
(v) Subscriber
understands that all, or substantially all, of the net proceeds received by the
Company are intended to be used in connection with the redemption of shares of
Company common stock held by certain Company shareholders, which include 25% of
shares owned by Newry Invest & Trade, Inc. ("Newry"), the Company's
controlling shareholder, and in connection with payments related to the
termination of the employment of Fucan Dong ("Dong"), the Company's Chairman
and a member of the Company's Board of Directors. Subscriber understands that
use of the amounts payable to Newry and Dong, which represent approximately 80%
of the subscription funds, are contingent upon the satisfaction of various
conditions relating to, among other things, completion of an audit on the
Company’s 2009 annual financial statements, the Company becoming current with
its SEC reporting obligations and the filing of a Form 211 with the Financial
Industry Regulatory Authority by a registered broker/dealer with respect to the
Company's common stock. Subscriber understand the Closing may be dependant on
the Company’s ability to cause such conditions to be satisfied or waiving those
conditions. While the Company intends to make commercially reasonable
efforts to cause satisfaction of those conditions before the Termination Date,
the Company cannot assure Subscriber that such conditions will be satisfied.
While any of these conditions may be waived by the Company, the Company may
decide to terminate the offering if such conditions are not satisfied, in which
case proceeds from accepted subscriptions then held in the Escrow Account will
promptly refunded to Subscriber without interest and after a
deduction of an 8% sales commission which will be paid to the selling agents
that assisted in the sale of the Securities. Nothing contained herein shall be
deemed to limit the Company's right to terminate the offering, in whole or in
part, for any reason or for no reason.
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(w) Subscriber
has not been furnished with any oral representation or oral information in
connection with the offering of the Securities that is not contained in the
Offering Memorandum or this Subscription Agreement.
(x) Subscriber
represents that Subscriber is not subscribing for Securities 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 the
Internet, television or radio or presented at any seminar or meeting or any
public announcement by the Company.
(y) Subscriber
has carefully read this Subscription Agreement and the Offering Memorandum, and
Subscriber has accurately completed the Confidential Purchaser Questionnaire
which accompanies this Subscription Agreement.
(z) No
representations or warranties have been made to 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
Securities Subscriber is not relying upon any representations other than those
contained in the Offering Memorandum or in this Subscription
Agreement.
(aa) To
the best of Subscriber's knowledge, other than those parties which the Company
has agreed to pay a commission (as more fully described in the Offering
Memorandum), no finder, broker, agent, financial advisor or other intermediary,
nor any purchaser representative or any broker-dealer acting as a broker, is
entitled to any compensation in connection with the transactions contemplated by
this Subscription Agreement.
(bb) Subscriber
has: (i) not distributed or reproduced the Offering Memorandum, in whole or in
part, at any time, without the prior written consent of the Company, (ii) kept
confidential the existence of the Offering Memorandum and the information
contained therein or otherwise made available in connection with any further
investigation of the Company, and (iii) refrained and shall refrain from trading
in any publicly-traded securities of the Company or any other relevant company
for so long as Subscriber has been or will be in possession of the material
nonpublic information contained in the Offering Memorandum.
(cc) If
Subscriber is a corporation, partnership, limited liability company, trust or
other entity, the person executing this Subscription Agreement hereby represents
and warrants that the above representations and warranties shall be deemed to
have been made on behalf of such entity and such person has made such
representations and warranties after due inquiry to determine the truthfulness
of such representations and warranties.
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(dd) If
Subscriber is a corporation, partnership, limited liability company, trust or
other entity: (i) it is duly organized, validly existing and in good standing in
its jurisdiction of incorporation or organization and has all requisite power
and authority to execute and deliver this Subscription Agreement and purchase
the Securities, as provided herein, and the Conversion Shares and the Warrant
Shares; (ii) neither the purchase of the Securities, nor the conversion of the
Notes or the exercise of the Warrants will result in any violation of, or
conflict with, any term or provision of the charter, bylaws or other
organizational documents of Subscriber or any other instrument or agreement to
which Subscriber is a party or is subject; (iii) the execution and delivery of
this Subscription Agreement and Subscriber's purchase of the Securities has been
duly authorized by all necessary action on behalf of Subscriber and constitute a
legal, valid and binding agreement of Subscriber.
(ee) Subscriber
represents that it shall have no lien, claim or security interest in the amounts
held by the Escrow Agent or any part thereof.
(ff) Subscriber
represents that the subscription information provided at the time of each
payment shall at the time of the submission and at the time of disbursement of
the amounts held by the Escrow Agent, be deemed a representation and warranty
that such deposit represents a bona fide payment by Subscriber for the amount of
Securities set forth in said Subscription Information.
(gg) Neither
Subscriber nor any affiliate of Subscriber is an affiliate of the
Company.
3. Representations and
Warranties of the Company. The Company represents and warrants to
Subscriber as follows:
(a) The
Company is duly organized and validly exists as a corporation in good standing
under the laws of the State of Delaware.
(b) The
Company has all corporate power and authority to enter into, deliver and perform
this Subscription Agreement.
(c) All
necessary corporate action has been duly and validly taken by the Company to
authorize the execution, delivery and performance of this Subscription Agreement
by the Company, and the issuance and sale of the Securities to be sold by the
Company pursuant to this Subscription Agreement. This Subscription Agreement has
been duly and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles, whether such enforcement is considered in a
proceeding in equity or in law.
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4.
Indemnification.
Subscriber agrees to indemnify and hold harmless the Company and its officers,
directors, employees, members, agents, representatives and affiliates, and any
person acting for or on behalf of the Company, from and against any and all
damage, loss, liability, cost and expense (including reasonable attorneys' fees
and disbursements) which any of them may incur by reason of the failure by
Subscriber to fulfill any of the terms and conditions of this Subscription
Agreement, or by reason of any breach of the representations and warranties made
by Subscriber herein, or in any other document provided by Subscriber to the
Company in connection with the subject matter hereof. All representations,
warranties and covenants of each of Subscriber and the Company contained herein
shall survive the acceptance of this subscription and the Closings.
5. Miscellaneous.
(a) Subscriber
agrees not to transfer or assign this Subscription Agreement or any of
Subscriber's interest herein and further agrees that the transfer or assignment
of the Securities, the Conversion Shares and/or the Warrant Shares shall be made
only in accordance with all applicable laws.
(b) Subscriber
agrees that Subscriber cannot cancel, terminate, or revoke this Subscription
Agreement or any agreement of Subscriber made hereunder, and this Subscription
Agreement shall survive the death or legal disability of Subscriber and shall be
binding upon Subscriber's heirs, executors, administrators, successors, and
permitted assigns. Except as otherwise provided herein, this
Agreement shall not be changed, modified or amended except by a writing signed
by the both the Company and Subscriber.
(c) Subscriber
has read and has accurately completed this entire Subscription Agreement and
Confidential Purchaser Questionnaire.
(d) This
Subscription Agreement and the Confidential Purchaser Questionnaire, constitute
the entire agreement between the parties hereto with respect to the subject
matter hereof and may be amended or waived only by a written instrument executed
by all parties.
(e) Subscriber
acknowledges that it has been advised to consult with Subscriber's own attorney
or accountant regarding this subscription and Subscriber has done so to the
extent that Subscriber deems appropriate. Subscriber understands and agrees that
Subscriber has not been represented in this transaction by counsel to the
Company.
(f) Any
notice or other document required or permitted to be given or delivered to the
parties hereto shall be in writing and sent: (i) by fax if the sender on the
same day sends a confirming copy of such notice by a recognized overnight
delivery service (charges prepaid), or (b) by registered or certified mail with
return receipt requested (postage prepaid) or (c) by a recognized overnight
delivery service (with charges prepaid).
If to the
Company, at:
c/o AFH
Holding and Advisory, LLC
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Fax: ______________
- 10
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If to Subscriber, at its address set
forth on the signature page to this Subscription Agreement, or such other
address as it shall have specified to the Company in writing.
(g) Failure
of the Company to exercise any right or remedy under this Subscription Agreement
or any other agreement between the Company and Subscriber, or otherwise, or
delay by the Company in exercising such right or remedy, will not operate as a
waiver thereof. No waiver by the Company will be effective unless and until it
is in writing and signed by the Company.
(h) This
Subscription Agreement shall be enforced, governed and construed in all respects
in accordance with the laws of the State of New York, as such laws are applied
by the New York courts except with respect to the conflicts of law provisions
thereof, and shall be binding upon Subscriber, Subscriber's heirs, estate, legal
representatives, successors and permitted assigns and shall inure to the benefit
of the Company, its successors and assigns.
(i) Any
legal suit, action or proceeding arising out of or relating to this Subscription
Agreement or the transactions contemplated hereby shall be instituted
exclusively in New York Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York. The parties hereto
hereby: (i) waive any objection which they may now have or hereafter have to the
venue of any such suit, action or proceeding, and (ii) irrevocably consent to
the jurisdiction of the New York Supreme Court, County of New York, and the
United States District Court for the Southern District of New York in any such
suit, action or proceeding. The parties further agree to accept and acknowledge
service of any and all process which may be served in any such suit, action or
proceeding in the New York Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York and agree that
service of process upon a party mailed by certified mail to such party's address
shall be deemed in every respect effective service of process upon such party in
any such suit, action or proceeding.
(j) If
any provision of this Subscription Agreement is held to be invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed modified to conform to such statute or rule of law. Any
provision hereof that may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provisions
hereof.
(k) The
parties understand and agree that money damages would not be a sufficient remedy
for any breach of the Subscription Agreement by the Company or Subscriber and
that the party against which such breach is committed shall be entitled to
equitable relief, including injunction and specific performance, as a remedy for
any such breach, without the necessity of establishing irreparable harm or
posting a bond therefore. Such remedies shall not be deemed to be the exclusive
remedies for a breach by either party of the Subscription Agreement but shall be
in addition to all other remedies available at law or equity to the party
against which such breach is committed.
(l) All
pronouns and any variations thereof used herein shall be deemed to refer to the
masculine, feminine, singular or plural, as identity of the person or persons
may require.
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(m) This
Subscription Agreement may be executed in counterparts and by facsimile, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
[Signature
Pages Follow]
- 12
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Signature
Page for Individuals:
IN WITNESS WHEREOF, Subscriber has
caused this Subscription Agreement to be executed as of the date indicated
below.
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$
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||
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Aggregate
Purchase Price
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Number
of Units
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Print
or Type Name
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Print
or Type Name (Joint-owner)
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Signature
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Signature
(Joint-owner)
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Date
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Date
(Joint-owner)
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Social
Security Number
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Social
Security Number (Joint-owner)
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Address
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Address
(Joint-owner)
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Email
Address
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Email
Address (Joint-owner)
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Wiring
Instructions:
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Bank
Name:
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ABA/Routing
#:
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Swift
Code:
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Acct
#:
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Acct.
Name:
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S-1
Partnerships,
Corporations and Other Entities:
IN WITNESS WHEREOF, Subscriber has
caused this Subscription Agreement to be executed as of the date indicated
below.
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$
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|
Aggregate
Purchase Price
|
Number
of Units
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|||
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Print
or Type Name of Entity
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Address
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Taxpayer
I.D. No. (if applicable)
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Date
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By:
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Print
or Type Name and Indicate Title
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Signature:
Name:
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or
Position with Entity
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Title:
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Signature
(other authorized signatory)
|
Print
or Type Name and Indicate Title
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or
Position with
Entity
|
|||
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Wiring
Instructions:
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Bank
Name:
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ABA/Routing
#:
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Swift
Code:
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Acct
#:
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Acct.
Name:
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S-2
[Company
Execution Page for Subscription Agreement]
IN WITNESS WHEREOF, the Company has
caused this Subscription Agreement to be executed, and the foregoing
subscription accepted, as of the date indicated below.
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By:
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Name:
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Title:
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||||
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Date:
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S-3