Exhibit 10.3
(U.S. ACCREDITED PURCHASERS ONLY)
NONE OF THE SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(THE "SUBSCRIPTION AGREEMENT") RELATES HAVE BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY U.S. STATE
SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE
UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS.
SUNERGY, INC
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
UNITS
UNITED STATES ACCREDITED INVESTORS
INSTRUCTIONS TO PURCHASER
1. THIS SUBSCRIPTION FORM is for use by United States Accredited Investors.
2. COMPLETE the information on page 2 of this Subscription Agreement.
3. COMPLETE the Questionnaire attached on page 5 to this Subscription
Agreement (the "Questionnaire").
4. All other information must be filled in where appropriate.
This is Page 2 of 12 pages of a subscription agreement and
related appendices, schedules and forms. Collectively, these pages
together are referred to as the "Subscription Agreement".
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
TO: SUNERGY, INC (the "ISSUER"), of 14362N. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Blvd.
Scottsdale, AZ 85260
Subject and pursuant to the terms set out in the Terms on pages 3 to 4 of this
Subscription Agreement, the General Provisions on pages 7 to 12 of this
Subscription Agreement and the other schedules and appendices attached which are
hereby incorporated by reference, the Purchaser hereby irrevocably subscribes
for, and on Closing will purchase from the Issuer, the following securities at
the following price:
_________________ UNITS
US$0.0075 per Unit for a total purchase price of US$ _____________________
The Purchaser owns, directly or indirectly, the following securities of the
Issuer:
_____________________________________________________
[CHECK IF APPLICABLE] The Purchaser is [ ] an affiliate of the Issuer
The Purchaser directs the Issuer to issue, register and deliver the certificates
representing the Purchased Securities as follows:
REGISTRATION INSTRUCTIONS DELIVERY INSTRUCTIONS
Name to appear on certificate Name and account reference, if applicable
Account reference if applicable Contact name
Address Address
Telephone Number
EXECUTED by the Purchaser this _______ day of _____________, 2010. By executing
this Subscription Agreement, the Purchaser certifies that the Purchaser and any
beneficial purchaser for whom the Purchaser is acting is resident in the
jurisdiction shown as the "Address of Purchaser".
WITNESS: EXECUTION BY PURCHASER:
X
Signature of Witness Signature of individual (if Purchaser IS
an individual)
X
Authorized signatory (if Purchaser IS NOT
Name of Witness an individual)
Address of Witness Name of Purchaser (PLEASE PRINT)
Name of authorized signatory (PLEASE PRINT)
Accepted this ___ day
of ____________, 2010
SUNERGY, INC Address of Purchaser (residence)
Per: *Telephone Number
Authorized Signatory *Social Security/Insurance No./Gov ID No.:
* Required from all Purchasers
By signing this acceptance, the Issuer agrees to be bound by the Terms on pages
3 to 4 of this Subscription Agreement, the General Provisions on pages 7 to 12
of this Subscription Agreement and the other schedules and appendices
incorporated by reference. IF FUNDS are delivered to the Company's lawyers, they
are authorized to release the funds to the Issuer without further authorization
from the Purchaser.
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES,
SCHEDULES AND FORMS) PAGE 3 OF 12
TERMS
Reference date of this
Subscription Agreement September 21, 2010 (the "Agreement Date")
THE OFFERING
The Issuer SUNERGY, INC (the "ISSUER" or the "COMPANY")
Offering The offering consists of units ("UNITS") Each
Unit will consist of one common share in the
capital of the Issuer (each, a "SHARE") and
one common share purchase warrant (each, a
"WARRANT"). Each Warrant shall be
non-transferable and shall entitle the holder
thereof to purchase one shares of common stock
in the capital of the Issuer (each, a "Warrant
Share"), as presently constituted, for a
period of twelve months commencing from the
Closing (as defined hereafter), at a price per
Warrant Share of US$0.015.
The Shares, Warrants and the Warrant Shares
are referred to as the "Securities" or the
"Purchased Securities".
Warrants Exercisable for 1 year from Closing at an
exercise price of US$0.015 per Warrant Share
for each Warrant.
Purchased Securities The "PURCHASED SECURITIES" under this
Subscription Agreement are Shares, Warrants
and the Warrant Shares.
Total Amount This offering is not subject to any minimum or
maximum offering.
Issue Price US$0.0075 per Unit.
Selling Jurisdictions The Units may be sold in jurisdictions where
they may be lawfully sold (the "SELLING
JURISDICTIONS").
Exemptions The offering will be made in accordance with
the following exemptions:
(a) the Accredited Investor exemption as
defined by Regulation D promulgated under the
1933 Act
(b) such other exemptions as may be available
the securities laws of the Selling
Jurisdictions.
No Registration of
Securities The Securities will be registered with the SEC
on a commercially reasonable efforts basis and
will also be tradable in compliance with Rule
144 restricted periods.
Resale restrictions and
legends The Purchaser acknowledges that the
certificates representing the Purchased
Securities will bear the following legends:
"NONE OF THE SECURITIES TO WHICH THIS PRIVATE
PLACEMENT SUBSCRIPTION AGREEMENT (THE
"SUBSCRIPTION AGREEMENT") RELATES HAVE BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR
ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO
REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE
UNITED STATES OR TO U.S. PERSONS (AS DEFINED
HEREIN) EXCEPT PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT AND
IN EACH CASE ONLY IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS."
Purchasers are advised to consult with their
own legal counsel or advisors to determine the
resale restrictions that may be applicable to
them.
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES,
SCHEDULES AND FORMS) PAGE 4 OF 12
Closing Date The completion of the sale and purchase of the
Units will take place in one or more closings,
on a date or dates as agreed to by the Issuer
and the Purchaser (the "CLOSING DATE").
Securities The Shares, the Warrants and the Warrant
Shares.
THE ISSUER
Jurisdiction of organization The Issuer is incorporated under the laws of
the State of Nevada.
"Securities Legislation
Applicable to the Issuer" The "SECURITIES LEGISLATION APPLICABLE TO THE
ISSUER" is the U.S. Securities Exchange Act of
1934, and the Securities Commission having
jurisdiction over the Issuer is the United
States Securities and Exchange Commission.
END OF TERMS
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES,
SCHEDULES AND FORMS) PAGE ▇ ▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
ACCREDITED INVESTOR QUESTIONNAIRE
All capitalized terms herein, unless otherwise defined, have the meanings
ascribed thereto in the Subscription Agreement.
This Questionnaire is for use by each Purchaser who is a US person (as that term
is defined Regulation S of the United States Securities Act of 1933 (the "1933
Act")) and has indicated an interest in purchasing Shares of the Issuer. The
purpose of this Questionnaire is to assure the Issuer that each Purchaser will
meet the standards imposed by the 1933 Act and the appropriate exemptions of
applicable state securities laws. The Issuer will rely on the information
contained in this Questionnaire for the purposes of such determination. The
Securities will not be registered under the 1933 Act in reliance upon the
exemption from registration afforded by Section 3(b) and/or Section 4(2) and
Regulation D of the 1933 Act. This Questionnaire is not an offer of the
Securities or any other securities of the Issuer in any state other than those
specifically authorized by the Issuer.
All information contained in this Questionnaire will be treated as confidential.
However, by signing and returning this Questionnaire, each Purchaser agrees
that, if necessary, this Questionnaire may be presented to such parties as the
Issuer deems appropriate to establish the availability, under the 1933 Act or
applicable state securities law, of exemption from registration in connection
with the sale of the Securities hereunder.
The Purchaser covenants, represents and warrants to the Issuer that it satisfies
one or more of the categories of "Accredited Investors", as defined by
Regulation D promulgated under the 1933 Act, as indicated below: (Please initial
in the space provide those categories, if any, of an "Accredited Investor" which
the Purchaser satisfies.)
____ Category 1 An organization described in Section 501(c)(3) of the United
States Internal Revenue Code, a corporation, a Massachusetts
or similar business trust or partnership, not formed for the
specific purpose of acquiring the Securities, with total
assets in excess of US $5,000,000.
____ Category 2 A natural person whose individual net worth, or joint net
worth with that person's spouse, on the date of purchase
exceeds US $1,000,000.
____ Category 3 A natural person who had an individual income in excess of
US $200,000 in each of the two most recent years or joint
income with that person's spouse in excess of US $300,000 in
each of those years and has a reasonable expectation of
reaching the same income level in the current year.
____ Category 4 A "bank" as defined under Section (3)(a)(2) of the 1933 Act
or savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the 1933 Act acting in its
individual or fiduciary capacity; a broker dealer registered
pursuant to Section 15 of the SECURITIES EXCHANGE ACT OF
1934 (United States); an insurance company as defined in
Section 2(13) of the 1933 Act; an investment company
registered under the INVESTMENT COMPANY ACT OF 1940 (United
States) or a business development company as defined in
Section 2(a)(48) of such Act; a Small Business Investment
Company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the SMALL BUSINESS INVESTMENT
ACT OF 1958 (United States); a plan with total assets in
excess of $5,000,000 established and maintained by a state,
a political subdivision thereof, or an agency or
instrumentality of a state or a political subdivision
thereof, for the benefit of its employees; an employee
benefit plan within the meaning of the EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974 (United States) whose investment
decisions are made by a plan fiduciary, as defined in
Section 3(21) of such Act, which is either a bank, savings
and loan association, insurance company or registered
investment adviser, or if the employee benefit plan has
total assets in excess of $5,000,000, or, if a self-directed
plan, whose investment decisions are made solely by persons
that are accredited investors.
____ Category 5 A private business development company as defined in Section
202(a)(22) of the INVESTMENT ADVISERS ACT OF 1940 (United
States).
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES,
SCHEDULES AND FORMS) PAGE 6 OF 12
____ Category 6 A director or executive officer of the Issuer.
____ Category 7 A trust with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Securities,
whose purchase is directed by a sophisticated person as
described in Rule 506(b)(2)(ii) under the 1933 Act.
____ Category 8 An entity in which all of the equity owners satisfy the
requirements of one or more of the foregoing categories.
Note that prospective Purchaser claiming to satisfy one of the above categories
of Accredited Investor may be required to supply the Issuer with a balance
sheet, prior years' federal income tax returns or other appropriate
documentation to verify and substantiate the Purchaser's status as an Accredited
Investor.
If the Purchaser is an entity which initialled Category 8 in reliance upon the
Accredited Investor categories above, state the name, address, total personal
income from all sources for the previous calendar year, and the net worth
(exclusive of home, home furnishings and personal automobiles) for each equity
owner of the said entity:
--------------------------------------------------------------------------------
The Purchaser hereby certifies that the information contained in this
Questionnaire is complete and accurate and the Purchaser will notify the Issuer
promptly of any change in any such information. If this Questionnaire is being
completed on behalf of a corporation, partnership, trust or estate, the person
executing on behalf of the Purchaser represents that it has the authority to
execute and deliver this Questionnaire on behalf of such entity.
IN WITNESS WHEREOF, the undersigned has executed this Questionnaire as of the
___ day of _______________, 2010.
If a Corporation, Partnership If an Individual:
or Other Entity:
--------------------------------- ---------------------------------
Print of Type Name of Entity Signature
--------------------------------- ---------------------------------
Signature of Authorized Signatory Print or Type Name
---------------------------------
Type of Entity
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES,
SCHEDULES AND FORMS) PAGE 7 OF 12
GENERAL PROVISIONS
1. DEFINITIONS
1.1 In the Subscription Agreement (including the first (cover) page, the Terms
on pages 3 to 4, these General Provisions and the other schedules,
questionnaires and appendices incorporated by reference), the following words
have the following meanings unless otherwise indicated:
(a) "1933 ACT" means the United States Securities Act of 1933, as amended;
(b) "APPLICABLE LEGISLATION" means the Securities Legislation Applicable
to the Issuer (as defined on page 8) and all legislation incorporated
in the definition of this term in other parts of the Subscription
Agreement, together with the regulations and rules made and
promulgated under that legislation and all administrative policy
statements, blanket orders and rulings, notices and other
administrative directions issued by the Commissions;
(c) "CLOSING" means the completion of the sale and purchase of the
Purchased Securities;
(d) "CLOSING DATE" has the meaning assigned in the Terms;
(e) "CLOSING YEAR" means the calendar year in which the Closing takes
place;
(f) "COMMISSIONS" means the Commissions with Jurisdiction over the Issuer
(as defined on page 4) and the securities commissions incorporated in
the definition of this term in other parts of the Subscription
Agreement;
(g) "FINAL CLOSING" means the last closing under the Private Placement;
(h) "GENERAL PROVISIONS" means those portions of the Subscription
Agreement headed "GENERAL PROVISIONs" and contained on pages 7 to 12;
(i) "PRIVATE PLACEMENT" means the offering of the Units on the terms and
conditions of this Subscription Agreement;
(j) "PURCHASED SECURITIES" has the meaning assigned in the Terms;
(k) "REGULATORY AUTHORITIES" means the Commissions;
(l) "SECURITIES" has the meaning assigned in the Terms;
(m) "SUBSCRIPTION AGREEMENT" means the first (cover) page, the Terms on
pages 3 to 4, the General Provisions and the other schedules and
appendices incorporated by reference; and
(n) "TERMS" means those portions of the Subscription Agreement headed
"Terms" and contained on pages 3 to 4.
1.2 In the Subscription Agreement, the following terms have the meanings defined
in Regulation S under the 1933 Act: "Directed SELLING EFFORTS", "FOREIGN
ISSUER", "SUBSTANTIAL U.S. MARKET INTEREST", "U.S. PERSON" and "UNITED STATES".
1.3 In the Subscription Agreement, unless otherwise specified, currencies are
indicated in U.S. dollars.
1.4 In the Subscription Agreement, other words and phrases that are capitalized
have the meanings assigned to them in the body hereof.
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES,
SCHEDULES AND FORMS) PAGE 8 OF 12
2. ACKNOWLEDGEMENTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1 ACKNOWLEDGEMENTS CONCERNING OFFERING
The Purchaser acknowledges that:
(a) the Securities have not been registered under the 1933 Act, or under
any state securities or "blue sky" laws of any state of the United
States, and are being offered only in a transaction not involving any
public offering within the meaning of the 1933 Act, and, unless so
registered, may not be offered or sold in the United States or to U.S.
Persons (as defined herein), except pursuant to an effective
registration statement under the 1933 Act, or pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the 1933 Act, and in each case only in accordance with
applicable state securities laws;
(b) the Company will refuse to register any transfer of the Securities not
made in accordance with the provisions of Regulation S, pursuant to an
effective registration statement under the 1933 Act or pursuant to an
available exemption from, or in a transaction not subject to, the
registration requirements of the 1933 Act;
(c) the Company has not undertaken, and will have no obligation, to
register any of the Securities under the 1933 Act;
(d) the decision to execute this Subscription Agreement and purchase the
Units agreed to be purchased hereunder has not been based upon any
oral or written representation as to fact or otherwise made by or on
behalf of the Company and such decision is based entirely upon a
review of information (the "Company Information") which has been
provided by the Company to the Purchaser. If the Company has presented
a business plan or any other type of corporate profile to the
Purchaser, the Purchaser acknowledges that the business plan, the
corporate profile and any projections or predictions contained in any
such documents may not be achieved or be achievable;
(e) the Purchaser and the Purchaser's advisor(s) have had a reasonable
opportunity to ask questions of and receive answers from the Company
regarding the Offering, and to obtain additional information, to the
extent possessed or obtainable without unreasonable effort or expense,
necessary to verify the accuracy of the information contained in the
Company Information, or any business plan, corporate profile or any
other document provided to the Purchaser;
(f) the books and records of the Company were available upon reasonable
notice for inspection, subject to certain confidentiality
restrictions, by the Purchaser during reasonable business hours at its
principal place of business and that all documents, records and books
pertaining to this Offering have been made available for inspection by
the Purchaser, the Purchaser's attorney and/or advisor(s);
(g) by execution hereof the Purchaser has waived the need for the Company
to communicate its acceptance of the purchase of the Units pursuant to
this Subscription Agreement;
(h) the Company is entitled to rely on the representations and warranties
and the statements and answers of the Purchaser contained in this
Subscription Agreement and in the Questionnaire, and the Purchaser
will hold harmless the Company from any loss or damage it may suffer
as a result of the Purchaser's failure to correctly complete this
Subscription Agreement or the Questionnaire;
(i) the Purchaser will indemnify and hold harmless the Company and, where
applicable, its respective directors, officers, employees, agents,
advisors and shareholders from and against any and all loss,
liability, claim, damage and expense whatsoever (including, but not
limited to, any and all fees, costs and expenses whatsoever reasonably
incurred in investigating, preparing or defending against any claim,
lawsuit, administrative proceeding or investigation whether commenced
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES,
SCHEDULES AND FORMS) PAGE 9 OF 12
or threatened) arising out of or based upon any representation or
warranty of the Purchaser contained herein, the Questionnaire or in
any other document furnished by the Purchaser to the Company in
connection herewith, being untrue in any material respect or any
breach or failure by the Purchaser to comply with any covenant or
agreement made by the Purchaser to the Company in connection
therewith;
(j) the issuance and sale of the Units to the Purchaser will not be
completed if it would be unlawful or if, in the discretion of the
Company acting reasonably, it is not in the best interests of the
Company;
(k) the Purchaser has been advised to consult its own legal, tax and other
advisors with respect to the merits and risks of an investment in the
Units and with respect to applicable resale restrictions and it is
solely responsible (and the Company is in any way responsible) for
compliance with applicable resale restrictions;
(l) the Securities are not listed on any stock exchange or automated
dealer quotation system and no representation has been made to the
Purchaser that any of the Securities will become listed on any stock
exchange or automated dealer quotation system;
(m) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of the
Securities ;
(n) no documents in connection with this Offering have been reviewed by
the SEC or any state securities administrators;
(o) there is no government or other insurance covering any of the
Securities ;
(p) this Subscription Agreement is not enforceable by the Purchaser unless
it has been accepted by the Company, and the Purchaser acknowledges
and agrees that the Company reserves the right to reject any
Subscription for any reason; and
(q) By executing and delivering this Agreement, each Purchaser will have
directed the Company not to include a Canadian Legend on any
certificates representing the Securities to be issued to such
Purchaser. As a consequence, the Purchaser will not be able to rely on
the resale provisions of National Instrument 45-102, and any
subsequent trade in the Securities during or after the Canadian hold
period described therein will be a distribution subject to the
prospectus and registration requirements of Canadian securities
legislation, to the extent that the trade is at that time subject to
any such Canadian securities legislation.
2.2 REPRESENTATIONS BY THE PURCHASER
The Purchaser represents and warrants to the Issuer that, as at the Agreement
Date and at the Closing:
(r) the Purchaser is resident in the United States;
(s) the Purchaser has received and carefully read this Subscription
Agreement;
(t) the Purchaser has the legal capacity and competence to enter into and
execute this Subscription Agreement and to take all actions required
pursuant hereto and, if the Purchaser is a corporation, it is duly
incorporated and validly subsisting under the laws of its jurisdiction
of incorporation and all necessary approvals by its directors,
shareholders and others have been obtained to authorize execution and
performance of this Subscription Agreement on behalf of the Purchaser;
(u) the Purchaser (i) has adequate net worth and means of providing for
its current financial needs and possible personal contingencies, (ii)
has no need for liquidity in this investment, and (iii) is able to
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES,
SCHEDULES AND FORMS) PAGE 10 OF 12
bear the economic risks of an investment in the Units for an
indefinite period of time, and can afford the complete loss of such
investment;
(v) the Purchaser is aware that an investment in the Company is
speculative and involves certain risks, including the possible loss of
the investment;
(w) the entering into of this Subscription Agreement and the transactions
contemplated hereby do not result in the violation of any of the terms
and provisions of any law applicable to, or, if applicable, the
constating documents of, the Purchaser, or of any agreement, written
or oral, to which the Purchaser may be a party or by which the
Purchaser is or may be bound;
(x) the Purchaser has duly executed and delivered this Subscription
Agreement and it constitutes a valid and binding agreement of the
Purchaser enforceable against the Purchaser;
(y) the Purchaser has the requisite knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of the investment in the Units and the Company, and the
Purchaser is providing evidence of such knowledge and experience in
these matters through the information requested in the Questionnaire;
(z) the Purchaser understands and agrees that the Company and others will
rely upon the truth and accuracy of the acknowledgements,
representations and agreements contained in this Subscription
Agreement, and agrees that if any of such acknowledgements,
representations and agreements are no longer accurate or have been
breached, the Purchaser shall promptly notify the Company;
(aa) all information contained in the Questionnaire is complete and
accurate and may be relied upon by the Company, and the Purchaser will
notify the Company immediately of any material change in any such
information occurring prior to the closing of the purchase of the
Securities ;
(bb) the Purchaser is purchasing the Units for its own account for
investment purposes only and not for the account of any other person
and not for distribution, assignment or resale to others, and no other
person has a direct or indirect beneficial interest is such Units, and
the Purchaser has not subdivided his interest in the Units with any
other person;
(cc) the Purchaser is not an underwriter of, or dealer in, the common
shares of the Company, nor is the Purchaser participating, pursuant to
a contractual agreement or otherwise, in the distribution of the
Securities ;
(dd) the Purchaser has made an independent examination and investigation of
an investment in the Units and the Company and has depended on the
advice of its legal and financial advisors and agrees that the Company
will not be responsible in anyway whatsoever for the Purchaser's
decision to invest in the Units and the Company;
(ee) if the Purchaser is acquiring the Units as a fiduciary or agent for
one or more investor accounts, the investor accounts for which the
Purchaser acts as a fiduciary or agent satisfy the definition of an
"Accredited Investor", as the term is defined under Regulation D of
the 1933 Act;
(ff) if the Purchaser is acquiring the Units as a fiduciary or agent for
one or more investor accounts, the Purchaser has sole investment
discretion with respect to each such account, and the Purchaser has
full power to make the foregoing acknowledgements, representations and
agreements on behalf of such account;
(gg) the Purchaser is not aware of any advertisement of any of the Units
and is not acquiring the Units as a result of any form of general
solicitation or general advertising including advertisements,
articles, notices or other communications published in any newspaper,
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES,
SCHEDULES AND FORMS) PAGE 11 OF 12
magazine or similar media or broadcast over radio or television, or
any seminar or meeting whose attendees have been invited by general
solicitation or general advertising; and
(hh) no person has made to the Purchaser any written or oral
representations: (i) that any person will resell or repurchase any of
the Securities ; (ii) that any person will refund the purchase price
of any of the Securities ; (iii) as to the future price or value of
any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on
any stock exchange or automated dealer quotation system or that
application has been made to list and post any of the Securities of
the Company on any stock exchange or automated dealer quotation
system.
2.3 RELIANCE, INDEMNITY AND NOTIFICATION OF CHANGES
The representations and warranties in the Subscription Agreement (including the
first (cover) page, the Terms, the General Provisions and the other schedules
and appendices incorporated by reference) are made by the Purchaser with the
intent that they be relied upon by the Issuer in determining its suitability as
a purchaser of Purchased Securities, and the Purchaser hereby agrees to
indemnify the Issuer against all losses, claims, costs, expenses and damages or
liabilities which any of them may suffer or incur as a result of reliance
thereon. The Purchaser undertakes to notify the Issuer immediately of any change
in any representation, warranty or other information relating to the Purchaser
set forth in the Subscription Agreement (including the first (cover) page, the
Terms, the General Provisions and the other schedules and appendices
incorporated by reference) which takes place prior to the Closing.
2.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties contained in this Section will survive the
Closing.
3. ISSUER'S ACCEPTANCE
The Subscription Agreement, when executed by the Purchaser, and delivered to the
Issuer, will constitute a subscription for Units which will not be binding on
the Issuer until accepted by the Issuer by executing the Subscription Agreement
in the space provided on the face page(s) of the Agreement and, notwithstanding
the Agreement Date, if the Issuer accepts the subscription by the Purchaser, the
Subscription Agreement will be entered into on the date of such execution by the
Issuer.
4. CLOSING
4.1 On or before the end of the fifth business day before the Closing Date, the
Purchaser will deliver to the Issuer the Subscription Agreement and all
applicable schedules and required forms, duly executed, and payment in full for
the total price of the Purchased Securities to be purchased by the Purchaser.
4.2 At Closing, the Issuer will deliver to the Purchaser the certificates
representing the Purchased Securities purchased by the Purchaser registered in
the name of the Purchaser or its nominee, or as directed by the Purchaser.
5. MISCELLANEOUS
5.1 The Purchaser agrees to sell, assign or transfer the Securities only in
accordance with the requirements of applicable securities laws and any legends
placed on the Securities as contemplated by the Subscription Agreement.
SUBSCRIPTION AGREEMENT (WITH RELATED APPENDICES,
SCHEDULES AND FORMS) PAGE 12 OF 12
5.2 The Purchaser hereby authorizes the Issuer to correct any minor errors in,
or complete any minor information missing from any part of the Subscription
Agreement and any other schedules, forms, certificates or documents executed by
the Purchaser and delivered to the Issuer in connection with the Private
Placement.
5.3 The Issuer may rely on delivery by fax machine of an executed copy of this
subscription, and acceptance by the Issuer of such faxed copy will be equally
effective to create a valid and binding agreement between the Purchaser and the
Issuer in accordance with the terms of the Subscription Agreement.
5.4 Without limitation, this subscription and the transactions contemplated by
this Subscription Agreement are conditional upon and subject to the Issuer's
having obtained such regulatory approval of this subscription and the
transactions contemplated by this Subscription Agreement as the Issuer considers
necessary.
5.5 This Subscription Agreement is not assignable or transferable by the parties
hereto without the express written consent of the other party to this
Subscription Agreement.
5.6 Time is of the essence of this Subscription Agreement.
5.7 Except as expressly provided in this Subscription Agreement and in the
agreements, instruments and other documents contemplated or provided for in this
Subscription Agreement, this Subscription Agreement contains the entire
agreement between the parties with respect to the Securities and there are no
other terms, conditions, representations or warranties whether expressed,
implied, oral or written, by statute, by common law, by the Issuer, or by anyone
else.
5.8 The parties to this Subscription Agreement may amend this Subscription
Agreement only in writing.
5.9 This Subscription Agreement enures to the benefit of and is binding upon the
parties to this Subscription Agreement and their successors and permitted
assigns.
5.10 A party to this Subscription Agreement will give all notices to or other
written communications with the other party to this Subscription Agreement
concerning this Subscription Agreement by hand or by registered mail addressed
to the address given on page 1.
5.11 This Subscription Agreement is to be read with all changes in gender or
number as required by the context.
5.12 This Subscription Agreement will be governed by and construed in accordance
with the internal laws of Nevada (without reference to its rules governing the
choice or conflict of laws), and the parties hereto irrevocably attorn and
submit to the exclusive jurisdiction of the courts of Nevada with respect to any
dispute related to this Subscription Agreement.
End of General Provisions
End of Subscription Agreement