SUBSCRIPTION AGREEMENT SHARES OF COMMON STOCK OF
SHARES
OF COMMON STOCK
OF
▇.▇.▇.
TASTE ON DEMAND INC.
Ladies
and Gentlemen:
The
undersigned (the “Subscriber”) understands that ▇.▇.▇. Taste on Demand Inc., a
Nevada corporation (the “Company”), is offering for sale to the Subscriber the
number of shares of the Company’s Common Stock, value per $0.001 (the “Common
Stock”), set forth below the Subscriber’s name on the signature page hereto. The
Subscriber acknowledges that it is not acting on the basis of any
representations or warranties other than those set forth in this subscription
agreement (this “Subscription Agreement”) and understands that the offering of
the Common Stock (the “Offering”) is being made without registration of the
Common Stock under the United States Securities Act of 1933, as amended (the
“Act”), or any securities, “blue sky” or other similar laws of any foreign or
domestic state (“State Securities Laws”), including without limitation, the
jurisdiction in which the Subscriber resides.
The
Subscriber agrees as follows:
1. Subscription.
The
Subscriber hereby tenders this subscription and applies for the purchase of
up
to twenty thousands (20,000) shares of Common Stock at a purchase price of
$0.05
per share for the aggregate purchase price of up to U.S. $1,000 (the “Purchase
Price”).
2. Payment
for Common Stock.
Payment
of the Purchase Price shall be made simultaneously with the execution and
delivery of this Subscription Agreement. Payment shall be made by check payable
to the Escrow Agent (as defined below) in New Israeli Shequels based on the
representative exchange rate on the date of payment. If this subscription is
not
accepted by December 15, 2007 or the Offering is terminated by the Company
for
any reason, all documents, together with the Purchase Price (without interest),
will be returned to the Subscriber by the Escrow Agent. If this subscription
is
accepted by the Company, the Escrow Agent will deliver the Purchase Price to
the
Company and the Company will deliver a certificate representing the shares
of
Common Stock purchased by the Subscriber to the Subscriber promptly following
such acceptance.
▇▇▇▇
▇▇▇▇▇▇, Advocate (the "Escrow Agent") is hereby appointed by the Subscriber
and
the Company as Escrow Agent for the acceptance of the Purchase Price from
Subscriber, and the Escrow Agent hereby accepts such appointment and agrees
to
act in accordance with the terms and conditions of this Section 2 and
instructions given pursuant hereto. Subscriber acknowledges that the Purchase
Price is to be held by Escrow Agent in a non interest bearing
account.
In
performing any of its duties hereunder, or upon the claimed failure to perform
hereunder, the Escrow Agent shall not be liable to anyone for any damages,
losses, or expenses which they may incur as a result of the Escrow Agent so
acting, or failing to act.
Subscriber
and the Company hereby agree to indemnify and hold harmless the Escrow Agent
against any and all losses, claims, damages, costs, liabilities and expenses,
including, without limitation, reasonable costs of investigation and counsel
fees and disbursements which may be imposed by the Escrow Agent or incurred
by
it in connection with its acceptance of this appointment as Escrow Agent
hereunder or the performance of its duties hereunder.
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The
Escrow Agent shall not be entitled to any fee in connection with its services
hereunder.
The
Escrow Agent services hereunder are administrative in nature. The Escrow Agent
shall not have any duties hereunder except those specifically set forth
herein.
3. Certain
Acknowledgments and Agreements of Subscriber.
The
Subscriber understands and acknowledges and agrees that: (i) the Company has
the
unconditional right, exercisable in its sole and absolute discretion, to accept
or reject this Subscription Agreement, in whole or in part, (ii) the
subscription is subject to prior sale, withdrawal, modification, or cancellation
of the Offering by the Company, (iii) the subscription shall not be valid unless
and until accepted by the Company, (iv) this Subscription Agreement shall be
deemed to be accepted by the Company only when it is signed by an authorized
officer of the Company on behalf of the Company and (v) notwithstanding anything
in this Subscription Agreement to the contrary, the Company shall have no
obligation to issue shares of Common Stock to the Subscriber if such issuance
would constitute a violation of the Act or any State Securities
Laws.
4. Representations
and Warranties of Company.
In
order to induce the Subscriber to tender this subscription, the Company hereby
represents and warrants to the Subscriber as follows:
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(a)
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Organization,
Good Standing, Corporate Power and Qualification.
The Company is a corporation duly organized, validly existing and
in good
standing under the laws of the State of Nevada and has all requisite
corporate power and authority to carry on its business as presently
conducted and as proposed to be
conducted.
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(b)
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Capitalization.
The authorized capital of the Company consists of 65,000,000 shares
of
Common Stock and 10,000,000 or preferred stock. All of the outstanding
shares of Common Stock have been duly authorized, are fully paid
and
nonassessable and were issued in compliance with all applicable federal
and State Securities Laws.
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(c)
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Authorization.
All corporate action required to be taken by the Company’s Board of
Directors and stockholders in order to authorize the Company to enter
into
this Subscription Agreement, and to issue the Common Stock, has been
taken
or will be taken prior to the acceptance of this subscription. All
action
on the part of the officers of the Company necessary for (i) the
execution
and delivery of the Subscription Agreement, (ii) the performance
of all
obligations of the Company under the Subscription Agreement, and
(iii) the
issuance and delivery of the Common Stock has been taken or will
be taken
prior to acceptance of this subscription. The Subscription Agreement,
when
executed and delivered by the Company, shall constitute valid and
legally
binding obligations of the Company, enforceable against the Company
in
accordance with their respective terms except (y) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, or other laws of general application relating to or affecting
the enforcement of creditors’ rights generally, or (z) as limited by laws
relating to the availability of specific performance, injunctive
relief,
or other equitable remedies.
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(d)
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Valid
Issuance of Common Stock.
The shares of Common Stock subject to this subscription, when issued,
sold
and delivered in accordance with the terms and for the consideration
set
forth in this Agreement, will be validly issued, fully paid and
nonassessable and free of restrictions on transfer other than restrictions
on transfer under applicable state and federal securities laws and
liens
or encumbrances created by or imposed by a Subscriber. Assuming the
accuracy of the representations in Section
5
of
this Agreement and subject to the filings described in Section 4(e)
below, the shares of Common Stock subject to this subscription will
be
issued in compliance with all applicable federal and State Securities
Laws.
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(e)
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Governmental
Consents and Filings.
Assuming the accuracy of the representations in Section
5
of
this Agreement, no consent, approval, order or authorization of,
or
registration, qualification, designation, declaration or filing with,
any
federal, state or local governmental authority is required on the
part of
the Company in connection with the consummation of the transactions
contemplated by this Agreement.
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5. Representations
and Warranties of Subscriber.
In
order to induce the Company to accept this subscription, the Subscriber hereby
represents and warrants to the Company as follows:
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(a)
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Subscriber:
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(i)
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is
not a U.S. person* “U.S.
person”, “United States” and “distributor” defined in Appendix A
hereto.
as
that term is defined under Regulation S (“Regulation S”) promulgated
under the Act;
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(ii)
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is
outside the United States* as of the date of the execution and delivery
of
this Subscription Agreement;
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(iii)
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is
acquiring the Common Stock for its own account (and/or for the account
of
other non-U.S. persons*, who are outside of the United States*) and
not on
behalf of any U.S. person, and the sale has not been pre-arranged
with a
person in the United States;
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(iv)
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is
not acquiring the Common Stock with the present intention of
“distributing” the Common Stock on behalf of the Company or a
“distributor”* as defined in Regulation S, or any of their affiliates, in
the United States or to a U.S. person under Regulation
S;
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(v)
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acknowledges
that, in addition to other restraints on transfer set forth in the
Stockholders Agreement, the Common Stock may only be resold in accordance
with the provisions of Regulation S cannot be sold by it in the United
States as part of a “distribution” (as such term is defined in the federal
securities laws of the United States);
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(vi)
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agrees
not to engage in any hedging transaction with regard to the Common
Stock;
and
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(vii)
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is
not an officer, director or “affiliate” (as that term is defined in Rule
405 under the Act) of the Company or “underwriter” or “dealer” (as such
terms are defined in the federal securities laws of the United States)
and
the acquisition of the Common Stock by the Subscriber is not a transaction
(or any element of a series of transactions) that is part of any
plan or
scheme to evade the registration provisions of the
Act.
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(b)
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SUBSCRIBER
HAS RECEIVED, READ CAREFULLY AND UNDERSTANDS THIS AGREEMENT AND ALL
EXHIBITS AND APPENDICES HERETO AND HAS HAD AN ADEQUATE OPPORTUNITY
TO
CONSULT SUBSCRIBER’S OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISOR WITH
RESPECT TO THE INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY
FOR
SUBSCRIBER;
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(c)
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The
Company has provided the Subscriber and his or her representative,
if any,
prior to the purchase of any of the Common Stock, with the opportunity
to
ask questions of, and receive answers from, representatives of the
Company
concerning the financial data and business of the Company and to
obtain
any additional information necessary to verify the information relative
to
the financial data and business of the Company, and all such questions,
if
asked, have been answered satisfactorily and all such documents,
if
examined, have been found to be fully satisfactory. The Subscriber
is
satisfied that he or she has received adequate information concerning
all
matters which he or she considers material to a decision to purchase
the
Common Stock;
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(d)
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Subscriber
understands and acknowledges that (i) Subscriber must bear the economic
risk of an investment in the Common Stock for an indefinite period
of
time; (ii) the Common Stock have not been registered under the Securities
Act or any State Securities Laws and are being offered and sold in
reliance upon exemptions provided in the Securities Act and State
Securities Laws for transactions not involving any public offering
and,
therefore, the Common Stock may not be resold or transferred unless
they
are subsequently registered under the Securities Act and applicable
State
Securities Laws or unless an exemption from such registration is
available; and (iii) Subscriber is purchasing the Common Stock, and
any
purchase of the Common Stock will be, for investment purposes only
for
Subscriber’s account and not with any view toward a distribution
thereof;
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(e)
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Subscriber
is aware and acknowledges that: (i) an investment in the Common Stock
is
speculative and involves a risk of loss of the entire investment
and no
assurance can be given of any income from such investment; (ii)
the
Company has not made and cannot make any representation or warranty
as to
the future operations or financial condition of the Company; (iii)
any
estimates of future operating results or financial forecasts of any
kind
with respect to the Company which may be contained in any documents
or
information furnished to the Subscriber may not be realized; (iv)
that
such estimates or forecasts are based on assumptions which may or
may not
occur; (vi) that no assurances can be given that the actual results
of
Company operations or the financial condition of the Company will
conform
to such estimates or forecasts and that therefore the Subscriber
should
not rely thereon; (vii) that the Company is a start up business and
it has
never shown a profit; (viii) that there is no assurance that the
Company’s
operations will be profitable or will produce a positive cash flow;
(ix)
that the Company may operate at a loss for the foreseeable future;
and (x)
there
is no public market for, and there are substantial restrictions on
the
transferability of, the Common Stock and it may not be possible for
Subscriber to liquidate the investment readily in case of an
emergency;
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(f)
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Subscriber
has adequate means of providing for all current and foreseeable needs
and
personal contingencies and has no need for liquidity in this investment;
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(g)
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Subscriber
maintains a domicile or business at the address shown on the signature
page of this Subscription Agreement, at which address Subscriber
has
subscribed for the Common Stock;
and
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(h)
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Subscriber
has such knowledge and experience in financial and business matters
that
he, she or it is capable of evaluating the merits and risks of an
investment in the Company. Subscriber has evaluated the risk of investing
in the Common Stock, and has determined that the Common Stock are
a
suitable investment for Subscriber. Subscriber can bear the economic
risk
of the investment and can afford a complete loss of the investment.
In
evaluating the suitability of any investment in the Common Stock,
Subscriber has not relied upon any representations or other information
(whether oral or written) other than independent investigations made
by
Subscriber or Subscriber’s
representative(s).
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6. Survival
and Indemnification.
All
representations, warranties and covenants contained in this Agreement or any
other documents executed and delivered in connection therewith and the
indemnification contained in this Paragraph 6 shall survive (i) the acceptance
of this Subscription Agreement by the Company, (ii) changes in the transactions,
documents and instruments described herein, and (iii) the death, disability
or
dissolution of the Subscriber. The Subscriber acknowledges the meaning and
legal
consequences of the representations, warranties and covenants in determining
the
Subscriber’s qualification and suitability to acquire the Common Stock. The
Subscriber hereby agrees to indemnify, defend and hold harmless the Company,
and
its officers, directors, employees, agents and controlling persons, from and
against any and all losses, claims, damages, liabilities, expenses (including
attorneys’ fees and disbursements), judgments or amounts paid in settlement of
actions arising out of or resulting from the untruth of any representation
herein or the breach of any warranty, covenant or acknowledgment made herein
by
the Subscriber shall in any manner be deemed to constitute a waiver of any
rights granted to it under the Act or any State Securities Laws.
7. Legends.
Subscriber acknowledges and agrees that any certificate evidencing the Common
Shares will bear substantially the following legend, and/or such other legends
as the Company’s legal counsel determines are necessary:
THE
SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION
S
UNDER THE SECURITIES ACT; (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT; OR (C) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. HEDGING TRANSACTIONS INVOLVING
THE COMMON STOCK OF THE ISSUER MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH
THE SECURITIES ACT.
-5-
8. Notices.
All
notices and other communications provided for herein shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid,
confirmed electronic mail or facsimile, or overnight air courier guaranteeing
next day delivery:
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(a)
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if
to the Company, to it at the following
address:
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(b)
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if
to the Subscriber, to the address set forth on the signature page
hereto,
or at such other address as either party shall have specified by
notice in
writing to the other.
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9. Assignability.
This
Subscription Agreement is not assignable by the Subscriber, and may not be
modified, waived or terminated except by an instrument in writing signed by
the
party against whom enforcement of such modifications, waiver or termination
is
sought.
10. Entire
Agreement.
This
Subscription Agreement, together with the Stockholders Agreement, constitutes
the entire agreement of the Subscriber and the Company relating to the matters
contained herein, superseding all prior contracts or agreements, whether oral
or
written.
11. Governing
Law.
This
Subscription Agreement shall be governed and controlled as to the validity,
enforcement, interpretation, construction and effect and in all other aspects
by
the substantive laws of the State of New York, without reference to conflicts
of
laws principles.
12. Waiver
of Jury Trial. THE
PARTIES HERETO EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY
IN ANY ACTION, CLAIM, SUIT OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OF
THE TRANSACTIONS CONTEMPLATED HEREBY AND FOR ANY COUNTERCLAIM BROUGHT
THEREIN.
13. Resolution
of Disputes.
(a) Any
dispute, controversy or claim arising out of or relating to this Agreement,
or
the breach, termination or invalidity thereof, shall be finally and exclusively
resolved by an arbitration tribunal (the “Tribunal”) in accordance with the
Arbitration Rules of the American Arbitration Association (“AAA”) as at present
in force. THE
DECISION OF THE TRIBUNAL SHALL BE FINAL AND BINDING UPON THE PARTIES
HERETO.
(b) The
arbitration shall take place in New York City, the State of New York and shall
be conducted in the English language. The parties hereby submit themselves
to
the exclusive jurisdiction of the arbitration tribunal in the City of New York,
the State of
exclusive
jurisdiction of the arbitration tribunal in the City of New York, the State
of
New York under the auspices of AAA. The arbitration shall be conducted by three
(3) arbitrators, one to be appointed by the Principals, collectively, one
to be appointed by Born Talent and a third by the two arbitrators so
selected.
(c) During
the period when a dispute is being resolved, except for the matter being
disputed, the parties shall in all other respects continue to abide by the
terms
of this Agreement.
(e) Waiver
of Jury Trial. THE
PARTIES HERETO EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY
IN ANY ACTION, CLAIM, SUIT OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OF
THE TRANSACTIONS CONTEMPLATED HEREBY AND FOR ANY COUNTERCLAIM BROUGHT
THEREIN.
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(g) Resolution
of Disputes.
(1) Any
dispute, controversy or claim arising out of or relating to this Agreement,
or
the breach, termination or invalidity thereof, shall be finally and exclusively
resolved by an arbitration tribunal (the “Tribunal”) in accordance with the
Arbitration Rules of the American Arbitration Association (“AAA”) as at present
in force. THE
DECISION OF THE TRIBUNAL SHALL BE FINAL AND BINDING UPON THE PARTIES
HERETO.
(2) The
arbitration shall take place in New York City, the State of New York and shall
be conducted in the English language. The parties hereby submit themselves
to
the exclusive jurisdiction of the arbitration tribunal in the City of New York,
the State of
exclusive
jurisdiction of the arbitration tribunal in the City of New York, the State
of
New York under the auspices of AAA. The arbitration shall be conducted by three
(3) arbitrators, one to be appointed by the Principals, collectively, one
to be appointed by Born Talent and a third by the two arbitrators so
selected.
(4) During
the period when a dispute is being resolved, except for the matter being
disputed, the parties shall in all other respects continue to abide by the
terms
of this Agreement.
14. Severability.
If any
provision of this Subscription Agreement or the application thereof to any
circumstance shall be held invalid or unenforceable to any extent, the remainder
of this Subscription Agreement and the application of such provision to other
subscriptions or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
15. Headings.
The
headings in this Subscription Agreement are inserted for convenience and
indemnification only and are not intended to describe, interpret, defined,
or
limit the scope, extent or intent of this Subscription Agreement or any
provision hereof.
16. Counterparts.
This
Subscription Agreement may be executed in any number of counterparts, each
of
which when so executed and delivered shall be deemed to be an original and
all
of which together shall be deemed to be one and the same agreement.
17. Amendment
and Modification.
This
Subscription Agreement may be amended or modified, or any provision hereof
may
be waived, provided that such amendment or waiver is set forth in writing
executed by the Company and the Subscriber. No course of dealing between or
among any persons having any interest in this Subscription Agreement will be
deemed effective to modify, amend or discharge any part of this Subscription
Agreement or any rights or obligations of any person under or by reason of
this
Subscription Agreement.
18. Miscellaneous.
This
Subscription Agreement (a) shall be binding upon the Subscriber and the heirs,
personal representatives, successors and assigns of Subscriber (provided that
this Agreement and the rights and obligations of Subscriber hereunder are not
transferable or assignable by Subscriber); and (b) shall be governed, construed
and enforced in accordance with the laws of the State of New York without
reference to any principles of conflict of laws (except insofar as affected
by
the state securities or “blue sky” law of the jurisdiction in which the Offering
has been made to Subscriber).
-7-
[Signature
page follows]
-8-
IN
WITNESS WHEREOF, the undersigned Subscriber has executed this Subscription
Agreement as of the date specified below.
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Subscriber’s
Full Legal Name (Please Print)
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Signature
of Subscriber
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Residence
Address
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Date
of Execution by Subscriber
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City,
State, Country
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Telephone
Number
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Email
Address
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Please
Check Appropriate Category:
___
Individual
___
Tenants in Common
___
Joint
tenants with right of survivorship
___
As
custodian, trustee or agent for:
Other
(e.g.,
corporation, Company, etc.)
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AGREED
TO AND ACCEPTED BY:
▇.▇.▇.
TASTE ON DEMAND INC.
By:_____________________________
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
President
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OFFERED
AMOUNT:
Total
Purchase Price U.S. $__________
____________
shares of Common Stock
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AGREED
TO ACCEPTED BY THE ESCROW AGENT (ONLY WITH RESPECT TO SECTION
2):
___________________________
▇▇▇▇
▇▇▇▇▇▇, Advocate
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APPENDIX
A
Pursuant
to Rule 902(d), (k) and (l) of Regulation S, the terms “distributor,” “U.S.
person” and “United States” are defined as follows:
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(a)
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Distributor.
“Distributor” means any underwriter, dealer, or other person who
participates pursuant to a contractual arrangement, in the distribution
of
the securities offered or sold in reliance on Regulation
S.
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(b)
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U.S.
Person.
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(A)
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“U.S.
person” means:
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(i)
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Any
natural person resident in the United
States;
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(ii)
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Any
partnership or corporation organized or incorporated under the laws
of the
United States;
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(iii)
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An
estate of which any executor or administrator is a U.S.
person;
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(iv)
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Any
trust of which any trustee is a U.S.
person;
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(v)
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Any
agency or branch of a foreign entity located in the United States;
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(vi)
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Any
non-discretionary account or similar account (other than an estate
or
trust) held by a dealer or other fiduciary for the benefit or account
of a
U.S. person; and
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(vii)
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Any
non-discretionary account or similar account (other than an estate
or
trust) held by a dealer or other fiduciary organized, incorporated
or (if
an individual) resident in the United States;
and
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(viii)
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Any
partnership or corporation if: (1) organized or incorporated under
the
laws of any foreign jurisdiction; and (2) formed by a U.S. person
principally for the purpose of investing in securities not registered
under the Securities Act of 1933, unless it is organized or incorporated
and owned, by accredited investors (as defined in Rule 501(a)) who
are not
natural persons, estate or trusts.
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(B)
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Notwithstanding
paragraph (k)(1) of Rule 902, any discretionary account or similar
account
(other than an estate or trust) held for the benefit or account of
a
non-U.S. person by a dealer or other professional fiduciary organized,
incorporated, or (if an individual) resident in the United States
shall
not be deemed a “U.S. person”.
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(C)
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Notwithstanding
paragraph (k)(1) of Rule 902, any estate of which any professional
fiduciary acting as executor or administrator is a U.S. person shall
not
be deemed a U.S. person if:
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(i)
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An
executor or administrator or the estate who is not a U.S. person
has sole
or shared investment discretion with respect to the assets of the
estates;
and
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(ii)
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The
estate is governed by foreign law.
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(D)
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Notwithstanding
paragraph (k)(1) of Rule 902, any trust of which any professional
fiduciary acting as trustee is a U.S. person shall not be deemed
a U.S.
person if a trustee who is not a U.S. person has sole or shared investment
discretion with respect to the trust assets, and no beneficiary of
the
trust (and no settlor if the trust is revocable) is a U.S.
person.
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(E)
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Notwithstanding
paragraph (k)(1) of Rule 902, an employee benefit plan established
and
administered in accordance with the law of a country other than the
United
States and customary practices and documentation of such country
shall not
be deemed a U.S. person.
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(F)
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Notwithstanding
paragraph (o)(1) of Rule 902, any agency or branch of a U.S. person
located outside the United States shall not be deemed a “U.S. person”
if:
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(i)
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The
agency or branch operates for valid business reasons;
and
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(ii)
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The
agency or branch is engaged in the business of insurance or banking
and is
subject to substantive insurance or banking regulation, respectively,
in
the jurisdiction where located.
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(G)
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The
International Monetary Fund, the International Bank for Reconstruction
and
Development, the Inter-American Development Bank, the Asian Development
Bank, the African Development Bank, the United Nations, and their
agencies, affiliates and pension plans, any other similar international
organizations, their agencies, affiliates and pension plans shall
not be
deemed “U.S. persons”.
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(c)
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United
States.
“United States” means the United States of America, its territories and
possessions, any State of the United States, and the District of
Columbia.
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