INVESTMENT AND REPRESENTATION AGREEMENT
INVESTMENT
AND REPRESENTATION
AGREEMENT
SECTION
1
1.1 Subscription. The
undersigned, intending to be legally bound, hereby irrevocably agrees to
purchase restricted shares (the “Shares”) of the common stock (the “Common
Stock”) of iGenii Inc., a newly-formed company (the "Company"), in a transaction
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “Securities Act”). The purchase price of the Shares is
$0.50 per Share.
The undersigned understands that the
Shares are being offered and sold (the “Offering”) as part of a transaction with
a minimum aggregate investment of $50,000 and a maximum of
$500,000.
1.2 Purchase of
Shares. The
investment amount remitted to the Company simultaneous with the execution and
delivery of this Agreement shall be _______________________ dollars
($___________________). The undersigned further understands and
acknowledges that this subscription is irrevocable, subject to the conditions
set forth below.
Payment has been made simultaneous
herewith by either (i) wire transfer as set forth below or (ii) by check payable
to iGenii Inc. (the “Subscription Payment”). The wire transfer
instructions are as follows:
[bank
information]
1.3 Acceptance or Rejection of
Subscription. The undersigned understands and agrees
that the Company reserves the right to reject this subscription for the Shares
if, in its reasonable judgment, it deems such action in the best interest of the
Company, at any time prior to acceptance by the Company, notwithstanding prior
receipt by the undersigned of notice of acceptance of the undersigned's
subscription. The undersigned understands and agrees that its subscription for
the Shares is irrevocable. In the event the sale of the Shares
subscribed for by the undersigned is not consummated by the Company for any
reason (in which event this Subscription Agreement shall be deemed to be
rejected), this Subscription Agreement and any other agreement entered into
between the undersigned and the Company relating to this subscription shall
thereafter have no force or effect and the Company shall promptly return or
cause to be returned to the undersigned the purchase price remitted to the
Company by the undersigned, without interest thereon or deduction therefrom, in
exchange for the Shares.
SECTION
2
Closing. The
closing (the "Closing") of the purchase and sale of the Shares, shall occur
simultaneously with the acceptance by the Company of the undersigned's
subscription, as evidenced by the Company's execution of this Subscription
Agreement.
SECTION
3
3.1 Investor Representations and
Warranties. The undersigned hereby acknowledges,
represents and warrants to, and agrees with, the Company as
follows:
(a) Investment
Purposes. The undersigned is acquiring the Shares for his own
account as principal, not as a nominee or agent, for investment purposes only,
and not with a view to, or for, resale, distribution or fractionalization
thereof in whole or in part in any transactions that would be in violation of
the Securities Act or any state securities or "blue-sky" laws. No other person
has a direct or indirect beneficial interest in, and the undersigned does not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any third person,
with respect to, the Shares or any part of the Shares for which the undersigned
is subscribing that would be in violation of the Securities Act or any state
securities or "blue-sky" laws.
(b) Authority. The
undersigned has full power and authority to enter into this Agreement, the
execution and delivery of this Agreement has been duly authorized, if
applicable, and this Agreement constitutes a valid and legally binding
obligation of the undersigned.
(c) No General
Solicitation. The undersigned is not subscribing for the
Shares as a result of or subsequent to any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media or
broadcast over television or radio; or presented at any seminar or similar
gathering; or any solicitation of a subscription by a person, other than
personnel previously known to the undersigned.
(d) Investment
Experience. The undersigned, or the undersigned’s professional
advisors, has such knowledge and experience in finance, securities, taxation,
investments and other business matters as to evaluate investments of the kind
described in this Agreement. By reason of the business and financial experience
of the undersigned or his professional advisors (other than those who may be
affiliated with or compensated in any way by the Company or any of its
respective affiliates or selling agents), the undersigned or his advisors can
protect his own interests in connection with the transactions described in this
Agreement. The undersigned is able to afford the loss of his entire investment
in the Shares.
(e) Exemption from
Registration. The undersigned acknowledges his understanding
that this Offering and the sale of the Shares is intended to be exempt from
registration under the
Securities
Act. In furtherance thereof, in addition to the other representations
and warranties of the undersigned made herein, the undersigned further
represents and warrants to and agrees with the Company and its affiliates as
follows:
(1) The
undersigned has the financial ability to bear the economic risk of his
investment, has adequate means for providing for his current needs and personal
contingencies and has no need for liquidity with respect to his investment in
the Company; and
(2) The
undersigned has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of the prospective
investment in the Shares. The undersigned also represents it has not
been organized for the purpose of acquiring the Shares; and
(3) The
undersigned understands that at this time the Shares are not being registered
under the Securities Act, or the securities laws of any state in reliance upon
exemptions therefrom for private offerings. The undersigned
understands that the Shares which are restricted must be held indefinitely
unless the sale thereof is subsequently registered under the Securities Act and
applicable state securities laws or exemptions from such registration are
available, such as Rule 144. All certificates evidencing the Shares
will bear a legend stating that the Shares have not been registered under the
Securities Act or state securities laws and they may not be resold unless they
are registered under the Securities Act and applicable state securities laws or
exempt therefrom.
(f) Economic
Considerations. The undersigned is not relying on the Company
or its affiliates or agents with respect to economic considerations involved in
this investment. The undersigned has relied solely on its own
advisors.
(g) No Other
Representations. No representations or warranties have been
made to the undersigned by the Company, or any officer, employee, agent or
affiliate of the Company other than the representations contained herein, and in
subscribing for Shares the undersigned is not relying upon any representations
other than those contained herein.
CROSS
OUT AND INITIAL (H) IF NOT TRUE
(h) Accredited
Investor. The undersigned is an “accredited investor” as that
term is defined in Rule 501(a) of Regulation D promulgated under the Securities
Act, and as specifically indicated in Exhibit A to this
Agreement.
(i) Residency. The
undersigned’s principal residence (if subscriber is an individual) or
principal business address, as applicable, is in the State or foreign locale
indicated on the signature page hereof, and the undersigned has no present
intention to move such residence or principal business address, as applicable,
from such State or foreign locale.
(j) Legend. Each
certificate representing the Shares shall be endorsed with the following legend,
in addition to any other legend required to be placed thereon by applicable
federal or state securities laws:
“THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR WITHOUT AN
EXEMPTION THEREFROM OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.”
The
undersigned consents to the Company making a notation on its records or giving
instructions to any transfer agent of the Company in order to implement the
restrictions on transfer of the Shares set forth in this Section.
(k) Potential Loss of
Investment. The undersigned understands that an investment in
the Shares is a speculative investment which involves a high degree of risk and
the potential loss of his entire investment. The
undersigned has considered the uncertainties and difficulties frequently
encountered by companies, such as the Company in their early stages of
development. The undersigned understands and acknowledges that as a
result thereof, he may lose his entire investment in the Company.
(l) Investment
Commitment. The undersigned's overall commitment to
investments which are not readily marketable is not disproportionate to the
undersigned's net worth, and an investment in the Shares will not cause such
overall commitment to become excessive.
(m) Receipt of
Information. The undersigned has received all documents,
records, books and other information pertaining to the undersigned’s investment
that has been requested by the undersigned. The undersigned has been provided
with an opportunity for a reasonable period of time prior to the date hereof to
obtain all information concerning the Company and the Offering and all other
information it deems appropriate.
(n) No
Reliance. Other than as set forth herein, the undersigned is
not relying upon any other information, representation or warranty by the
Company or any officer, director, stockholder, agent or representative of the
Company in determining to invest in the Shares. The undersigned has
consulted, to the extent deemed appropriate by the undersigned, with the
undersigned’s own advisers as to the financial, tax, legal and related matters
concerning an investment in the Shares and on that basis believes that his or
its investment in the Shares is suitable and appropriate for the
undersigned.
(o) No Governmental
Review. The undersigned is aware that no federal or state
agency has (i) made any finding or determination as to the fairness of this
investment, (ii) made
any
recommendation or endorsement of the Shares or the Company, or (iii) guaranteed
or insured any investment in the Shares.
(p) Price of
Shares. The undersigned understands that the price of
the Shares offered hereby was determined by the Company without reference to the
assets or book value of the Company. The undersigned further
understands that there is an expectation of further dilution of his or its
investment in the Company.
SECTION
4
The Company represents and warrants to
the undersigned as follows:
4.1
Organization of the
Company. The Company is a corporation duly organized and
validly existing and in good standing under the laws of the State of Delaware,
and has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
4.2 Authority. (a) The
Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Shares; (b) the
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action and no further consent or authorization of the
Company or its Board of Directors or stockholders is required; and (c) this
Agreement has been duly executed and delivered by the Company and constitutes a
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as
such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
4.3 Exemption from Registration;
Valid Issuances. The sale and issuance of the Securities, in
accordance with the terms and on the bases of the representations and warranties
of the undersigned set forth herein, may and shall be properly issued by the
Company to the undersigned pursuant to Section 4(2). When issued and paid for as
herein provided, the Shares shall be duly and validly issued, fully paid, and
nonassessable. Neither the sales of the Shares pursuant to, nor the Company's
performance of its obligations under, this Agreement shall (a) result in the
creation or imposition of any liens, charges, claims or other encumbrances upon
the Shares or any of the assets of the Company, or (b) entitle the other holders
of the Common Stock of the Company to preemptive or other rights to subscribe to
or acquire the Common Stock or other securities of the Company. The Shares shall
not subject the undersigned to personal liability by reason of the ownership
thereof.
4.4 No General Solicitation or
Advertising in Regard to this Transaction. Neither the Company nor any of
its affiliates nor any person acting on its or their behalf (a)
has
conducted
or will conduct any general solicitation (as that term is used in Rule 502(c) of
Regulation D) or general advertising with respect to any of the Shares, or (b)
made any offers or sales of any security or solicited any offers to buy any
security under any circumstances that would require registration of the Common
Stock under the Securities Act.
4.5 No
Conflicts. The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby, including
without limitation the issuance of the Shares, do not and will not (a) result in
a violation of the Certificate or By-Laws of the Company or (b) conflict with,
or constitute a material default (or an event that with notice or lapse of time
or both would become a material default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material agreement,
indenture, instrument or any "lock-up" or similar provision of any underwriting
or similar agreement to which the Company is a party, or (c) result in a
violation of any federal, state, local or foreign law, rule, regulation, order,
judgment or decree (including federal and state securities laws and regulations)
applicable to the Company or by which any property or asset of the Company is
bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a material adverse effect on the
business, operations, properties, prospects or condition (financial or
otherwise) of the Company) nor is the Company otherwise in violation of,
conflict with or in default under any of the foregoing.
4.6 No Integrated
Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, other than pursuant to this Agreement, under circumstances
that would require registration of the Common Stock under the Securities
Act.
SECTION
5
5.1 Indemnity. The
undersigned agrees to indemnify and hold harmless the Company and its officers,
directors, employees and its affiliates and their respective successors and
assigns and each other person, if any, who controls any thereof, against any
loss, liability, claim, damage and expense whatsoever (including, but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation commenced or
threatened or any claim whatsoever) arising out of or based upon any false
representation or warranty or breach or failure by the undersigned to comply
with any covenant or agreement made by the undersigned herein or in any other
document furnished by the undersigned to any of the foregoing in connection with
this transaction.
5.2 Modification. Neither
this Agreement nor any provisions hereof shall be modified, discharged or
terminated except by an instrument in writing signed by the party against whom
any waiver, change, discharge or termination is sought.
5.3 Notices. Any
notice, demand or other communication which any party hereto may be required, or
may elect, to give to anyone interested hereunder shall be sufficiently given if
(a) deposited, postage prepaid, in a United States mail letter box, registered
or certified mail, return receipt requested, addressed to such address as may be
given herein, (b) delivered personally at such address, (c) upon the expiration
of twenty four (24) hours after transmission, if sent by facsimile if a
confirmation of transmission is produced by the sending machine (and a copy of
each facsimile promptly shall be sent by ordinary mail), (d) upon the expiration
of twenty four (24) hours after transmission, if sent by email if a confirmation
of transmission is produced by the sending computer (and a copy of each email
transmission promptly shall be sent by ordinary mail) or (e) on the third
business day, if sent by overnight recognized courier, in each case to the
parties at their respective addresses set forth below their signatures to this
Agreement (or at such other address for a party as shall be specified by like
notice; provided that the notices of a change of address shall be effective only
upon receipt thereof).
5.4 Counterparts. This
Agreement may be executed through the use of separate signature pages or in any
number of counterparts and by facsimile, and each of such counterparts shall,
for all purposes, constitute one agreement binding on all parties,
notwithstanding that all parties are not signatories to the same counterpart.
Signatures may be facsimiles.
5.5 Binding
Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and
assigns. If the undersigned is more than one person, the obligation
of the undersigned shall be joint and several and the agreements,
representations, warranties and acknowledgments herein contained shall be deemed
to be made by and be binding upon each such person and his heirs, executors,
administrators and successors.
5.6 Entire
Agreement. This Agreement and the documents referenced herein
contain the entire agreement of the parties and there are no representations,
covenants or other agreements except as stated or referred to herein and
therein.
5.7 Assignability. This
Agreement is not transferable or assignable by the undersigned.
5.8 Applicable Law; Arbitration;
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to conflicts of law principles. Any dispute between or, action or
proceeding against any of the parties hereto under, arising out of or in any
manner relating to, this Agreement and the transactions contemplated herein
shall be submitted to and adjudicated by binding arbitration. If
there is any litigation regarding the arbitration or otherwise relating to this
section 5.8, the parties hereto irrevocably consent to the jurisdiction of the
courts of the State of New York and of any federal court located in such State
in connection with any action or proceeding arising out of or relating to this
Agreement, any document or instrument delivered pursuant to, in connection with
or simultaneously with this Agreement, or a breach of this Agreement or any such
document or instrument. In any such action or proceeding, each party
hereto waives personal service of any summons, complaint or other process and
agrees that service thereof may be made in accordance with Section
5.3. Within 30 days after such service, or such other time as may be
mutually agreed upon in writing by the attorneys for the parties to such action
or proceeding, the party so
served
shall appear or answer such summons, complaint or other
process. EACH PARTY
HERETO WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF
THIS AGREEMENT OR ANY BREACH OR ALLEGED BREACH HEREOF.
5.9 Pronouns. The
use herein of the masculine pronouns "him" or "his" or similar terms shall be
deemed to include the feminine and neuter genders as well and the use herein of
the singular pronoun shall be deemed to include the plural as well.
5.10 Further
Assurances. Upon request from time to time, the undersigned
shall execute and deliver all documents and do all other acts that may be
necessary or desirable, in the opinion of the Company or their counsel, to
effect the subscription for the Shares in accordance herewith.
SIGNATURE
PAGE
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year as set forth
below.
Subscription
Payment:
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Print
Name of Subscriber
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$
_______________
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By:
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(Signature
of Subscriber or
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Authorized
Signatory)
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Address:
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| Telephone: | ||
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Fax:
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______________________________
Social
Security Number or other
Taxpayer
Identification Number
If the
Shares will be held as joint tenants, tenants in common, or community property,
please complete the following:
|
Print name of
spouse or other co-subscriber
|
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Signature of
spouse or other co-subscriber
|
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| Print manner in which Shares will be held |
______________________________
Social
Security Number or other
Taxpayer
Identification Number
ACCEPTANCE
OF SUBSCRIPTION
|
_____________________________
Name
of Subscriber
|
ACCEPTED
BY:
iGENII
INC.
By:____________________________
Name:
Title:
Date: ,
2008
Accepted
Subscription Payment for
$
Exhibit
A
ACCREDITED INVESTOR
QUESTIONNAIRE
The
undersigned subscriber represents that it is an Accredited Investor on the basis
that it is (check one):
_____(i) A
bank as defined in Section 3(a)(2) of the Act, or a savings and loan association
or other institution as defined in Section 3(a)(5)(A) of the Act, whether acting
in its individual or fiduciary capacity; a broker or dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934; an insurance company as
defined in Section 2(13) of the Act; an investment company registered under the
Investment Company Act of 1940 (the “Investment Company Act”) or a business
development company as defined in Section 2(a)(48) of the Investment Company
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; a plan established and maintained by a state, its political
subdivisions or any agency or instrumentality of a state or its political
subdivisions for the benefit of its employees, if such plan has total assets in
excess of $5,000,000; an employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 (“ERISA”), if the investment
decision is made by a plan fiduciary, as defined in Section 3(21) of ERISA,
which is either a bank, savings and loan association, insurance company, or
registered investment advisor, or if the employee benefit plan has total assets
in excess of $5,000,000 or, if a self-directed plan, with investment decisions
made solely by persons that are accredited investors.
_____(ii) A
private business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
_____(iii) An
organization described in Section 501(c)(3) of the Internal Revenue Code,
corporation, Massachusetts or similar business trust, or partnership, not formed
for the specific purpose of acquiring the securities offered, with total assets
in excess of $5,000,000.
_____(iv) A
director or executive officer of the Company.
_____(v) A
natural person whose individual net worth, or joint net worth with that person’s
spouse, at the time of his or her purchase exceeds $1,000,000.
_____(vi) A
natural person who had an individual income in excess of $200,000 in each of the
two most recent years or joint income with that person’s spouse in excess of
$300,000 in each of those years and has a reasonable expectation of reaching the
same income level in the current year.
_____(vii) A
trust, with total assets in excess of $5,000,000, not formed for the specific
purpose of acquiring the securities offered, whose purchase is directed by a
sophisticated person as described in Rule 506(b)(2)(ii) (i.e., a person who has
such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of the prospective
investment).
_____(viii) An
entity in which all of the equity owners are accredited
investors. (If this alternative is checked, the Subscriber must
identify each equity owner and provide statements signed by each demonstrating
how each is qualified as an accredited investor. Further, the
Subscriber represents that it has made such investigation as is reasonably
necessary in order to verify the accuracy of this
alternative.)