SUBSCRIPTION AND INVESTMENT REPRESENTATION AGREEMENT
INTAC International
Xxxx 0000, 00/X., Xxxxxx Xxxxxxxxx,
0 Xxxxx Xxx Xxxxxx, Xxxx Xxxx,
Xxxxxxx, Xxxx Xxxx
Attention: Xxx Xxxx, Chief Executive Officer
Dear Xx. Xxxx:
The undersigned ("Investor") has received and reviewed the
Confidential Disclosure Statement dated October 25, 2001, and all
of the attachments thereto (collectively, the "Offering
Materials") relating to the sale of 545,455 shares of the common
stock, $.001 par value per share (the "Common Stock"), of
Commodore Minerals, Inc., a Nevada corporation d/b/a INTAC
International (the "Company"). The Offering Materials have been
attached as Attachment A hereto.
On the basis of these Offering Materials, together with the
terms and conditions of this Subscription and Investment
Representation Agreement (the "Agreement"), the Investor proposes
to make an investment in the Company as follows:
1. Subscription. Subject to the terms and conditions
hereof, Investor hereby irrevocably subscribes to purchase
545,455 shares (the "Shares") of Common Stock of the Company at a
price of $5.50 per share. In so doing, Investor is hereby
delivering to the Company, for the Company's benefit, a check,
draft, money order or wire transfer payable to the order of
"INTAC International" in the amount of $3,000,002.50, the
aggregate purchase price payable in respect of the purchase of
the Shares.
2. Representations and Warranties of the Company. The
Company represents and warrants to the Investor as follows:
(a) The Company is a corporation duly organized and
validly existing under the laws of the State of Nevada.
(b) As of the date hereof, the entire authorized
capital stock of the Company consists of One Hundred Million
(100,000,000) shares of Common Stock, of which Eighteen Million
Five Hundred Forty Four Thousand (18,544,000) shares are issued
and outstanding on the date hereof prior to the offering made
hereby. All of the issued and outstanding shares are duly
authorized, validly issued, fully paid, and nonassessable. The
Shares to be issued to the Investor in the offering will be, when
issued and paid for in accordance with the terms of the Offering
Materials, validly issued, fully paid and nonassessable.
(c) The Company has full corporate power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes a valid and
legally binding obligation of the Company, enforceable in
accordance with its terms and conditions.
3. Representations and Warranties of Investor. Investor
hereby represents and warrants to the Company as follows:
(a) The offer and sale of the Shares to Investor is
made in reliance upon Investor's representation to the Company,
which, by Investor's execution of this Agreement, Investor hereby
confirms, that the Shares are being acquired for investment for
Investor's own account, not as a nominee or agent, and not with a
view to the sale or distribution of any part thereof, and that
Investor has no present intention of selling, granting any
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participation in, or otherwise distributing the same. By
executing this Agreement, Investor further represents that
Investor has no contract, undertaking, agreement or arrangement
with any person to sell, transfer, or grant participation rights
to such person or to any third person, with respect to any of the
Shares and has no present intention to enter into any such
contract, undertaking, agreement or arrangement.
(b) Investor understands and acknowledges that the
offering of the Shares has not and will not be registered under
the Securities Act of 1933, as amended (the "Securities Act"), on
the grounds that the offering and sale of the Shares are exempt
from registration pursuant to the provisions of Section 4(2)
and/or Rule 506 of Regulation D of the Securities Act, and that
the Company's reliance upon such exemption is, in part,
predicated upon Investor's representations set forth in this
Agreement.
(c) Investor covenants that in no event will Investor
dispose of any of the Shares, or any part thereof, unless and
until (i) there is an effective Registration Statement under the
Securities Act covering the proposed disposition and such
disposition is made in accordance with such Registration
Statement, (ii) the contractual lock-up period imposed upon
Investor under this Agreement has expired or has been otherwise
waived by the Company in writing, and (iii) Investor shall have
notified the Company of the proposed disposition and shall have
furnished the Company with a statement of the circumstances
surrounding the proposed disposition, and, if reasonably
requested by the Company, Investor shall have furnished the
Company with an opinion of counsel satisfactory in form and
substance to the Company and the Company's counsel to the effect
that (A) such disposition will not require registration under the
Securities Act and (B) appropriate action necessary for
compliance with the Securities Act and any applicable state,
local or foreign law has been taken.
(d) Investor represents that Investor (i) has such
knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of Investor's
prospective investment in the Shares; (ii) has received from the
Company all the information he has requested and considers
necessary or appropriate for deciding whether to purchase the
Shares; (iii) has had an opportunity to ask questions and receive
answers from the Company regarding the Company, its business,
operations, market potential, capitalization, financial condition
and prospects, and the terms and conditions of the offering of
the Shares; (iv) has the ability to bear the economic risks of
Investor's prospective investment; and (v) is able, without
materially impairing his financial condition, to hold the Shares
for an indefinite period of time and to suffer complete loss on
his investment.
(e) Investor represents that he is a bona fide
resident of the state or country indicated herein, and if
Investor is an individual, Investor is at least 21 years of age.
Investor further represents that he has no present intention of
becoming a resident of any other state or jurisdiction.
(f) If Investor's purchase of the Shares is subject to
regulation by the government of a sovereign jurisdiction other
than the United States, Investor has complied with all laws and
regulations governing the purchase and sale of the Shares imposed
by such sovereign jurisdiction.
(g) Investor has received and read or reviewed, and is
thoroughly familiar with, the Offering Materials, particularly
the information set forth under the caption "Risk Factors" found
therein, and Investor is aware of the high degree of risk
involved in making an investment in the Company; it being
understood, however, that this representation does not constitute
a waiver of any rights that Investor has under the Securities
Act, any applicable state securities act or the rules and
regulations promulgated thereunder.
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(h) Investor has had the opportunity to review, at the
Company's offices, any materials available to the Company
relating to the Company or any other matters or items discussed
in or accompanying the Offering Materials, except for the
Company's proprietary information. The Company has answered all
inquiries from Investor concerning the matters set forth in the
Offering Materials, and given Investor the opportunity to obtain
any additional information (to the extent the Company possessed
such information or could acquire it without unreasonable effort
or expense) necessary to verify the accuracy of any information
set forth in the Offering Materials.
(i) Investor understands that he is purchasing the
Shares only in reliance upon the information set forth in the
Offering Materials. Investor acknowledges that, except as set
forth in the Offering Materials, no representations or warranties
have been made to Investor or the Investor's advisors by the
Company or by any persons acting on their behalf with respect to
the business of the Company, the financial condition of the
Company or any other aspect of or related to a purchase of the
Shares, and that Investor has not relied upon any information
concerning this transaction, written or oral, other than that
contained in the Offering Materials.
(j) Investor acknowledges and is aware of the
following:
(i) The Shares are a highly speculative
investment that involves a substantial risk of loss by
Investor of his entire investment in the Company.
(ii) There are substantial restrictions on the
transferability of the Shares. The Shares will only
be, and Investor has the right to require that the
Shares be registered under the Securities Act only
pursuant to the terms and conditions of the
Registration Rights Agreement, a copy of which is
attached as Attachment B hereto; accordingly, there may
be no public market for the Shares; Investor may not be
able to avail himself of the provisions of Rule 144
under the Securities Act with respect to the resale of
the Shares; and, may have to hold the Shares
indefinitely and may not be able to liquidate his
investment in the Company.
(iii) No federal or state agency has made any
finding or determination as to the fairness of the
offering of the Shares for investment or any
recommendation or endorsement of the Shares.
(iv) The Company, its officers, directors, agents
or employees or any other person, have not represented,
guaranteed or warranted to Investor, expressly or by
implication, any of the following:
* the approximate or exact length of time that
Investor will be required to remain an owner
of the Shares;
* the amount of or type of consideration,
profit or loss to be realized, if any, as a
result of an investment in the Company; or
* the likelihood that the Company's business
plan will succeed.
(k) Investor has neither distributed nor disclosed,
directly or indirectly, any of the Offering Materials or the
information contained therein, including, without limitation, the
information contained in any contract or agreement to which the
Company is a party, to anyone other than his legal, tax,
accounting or other advisors for their use solely in that
capacity for Investor, and no one other than the undersigned and
his legal, tax, accounting or other advisors, if any, has used
the Offering Materials.
(l) Investor represents and warrants to the Company
that he is an "accredited investor" within the meaning of SEC
Rule 501(a) of Regulation D, as presently in effect.
(m) Investor agrees that the Company may rely on the
representations found in this Section 3. Investor further agrees
that he will furnish to the Company such further information as
the Company may deem relevant in determining whether the
undersigned is an "accredited investor" within the meaning of
Rule 501(a) and whether the undersigned's proposed investment may
have any adverse legal effects, and the undersigned authorizes
the Company and its agents to confirm, as necessary, with the
undersigned's tax adviser, investment counselor, lawyer,
accountant, banker or other financial representative named below,
such information as the Company may deem relevant in making such
determination.
(n) The foregoing representations and warranties are
true and accurate as of the date hereof and shall survive the
Closing of the purchase of the Shares. If in any respect such
representations and warranties
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shall not be true and accurate prior to the Closing Date,
Investor shall give written notice of such fact to the Company,
specifying which representations and warranties are not true and
accurate and the reasons therefor.
4. Indemnification. Investor recognizes that the sale of
the Shares to Investor will be based upon his representations and
warranties set forth in Paragraph 3 hereof, and Investor agrees
to indemnify and to hold harmless the Company, each of its
officers and directors, and each person who controls the Company,
from and against any and all loss, damage, liability or expense,
including costs and reasonable attorneys' fees, to which they may
be subject or which they may incur by reason of, or in connection
with, any misrepresentation made by Investor in this Agreement,
any breach by Investor of his warranties or failure by Investor
to fulfill any covenants or agreements set forth herein or
arising out of the sale or distribution of any such shares by
Investor in violation of the Securities Act or other applicable
securities laws. All representations, warranties, and covenants
and the indemnification contained in this Agreement shall survive
the acceptance of this subscription and the issuance to Investor
of the Shares.
5. Confidentiality. Investor hereby covenants and agrees
to maintain the confidential status of all Confidential
Information (as defined below), and not to use, directly or
indirectly, any such Confidential Information for any purpose
other than to evaluate an investment in the Company, and not to
disclose, directly or indirectly, any such Confidential
Information to any third party. For the purposes of this
Agreement, "Confidential Information" means all business,
financial, technical and other information about the Company,
designated as confidential or proprietary, or information which,
by the nature of the circumstances surrounding the disclosure,
ought in good faith to be treated as confidential, including,
without limitation, the Offering Materials.
6. Lock-up; Market Stand-off. Investor agrees that he
shall not sell, pledge, encumber or otherwise transfer or dispose
of any more than 45,455 Shares in any rolling 30-day period
(whether or not such Shares have been included in or are
otherwise eligible for resale under a Registration Statement
filed under the Securities Act) on or before the one (1) year
anniversary of the Closing Date without the prior written consent
of the Company, which consent may be withheld in the Company's
sole and absolute discretion.
7. Acknowledgment. Investor acknowledges and understands
that he may receive or may be provided confidential or otherwise
non-public information about the Company that may constitute
material, non-public information concerning the Company, and that
he is obligated to refrain from selling any shares of common
stock beneficially owned or held by him at any time during which
Investor is in possession of non-public, material information
concerning the Company.
8. Restrictive Legends. Investor understands and agrees
that the following restrictions and limitations are applicable to
his purchase and any resale or other transfer he may make of the
Shares:
(a) The Shares shall not be sold or otherwise
transferred unless they are registered under the Securities Act
and applicable state securities laws or are exempt therefrom.
(b) Legends in substantially the following form will
be placed on each certificate evidencing the Shares:
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAW. THE SHARES HAVE BEEN
ACQUIRED FOR PRIVATE INVESTMENT AND MAY NOT
BE OFFERED FOR SALE OR SOLD IN THE ABSENCE OF
(i) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SHARES UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND ANY APPLICABLE STATE
SECURITIES LAWS, OR (ii) AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
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THE SHARES REPRESENTED HEREBY ARE SUBJECT TO
A CERTAIN LOCK-UP AGREEMENT AND MAY NOT BE
SOLD, PLEDGED, ENCUMBERED OR OTHERWISE
TRANSFERRED OR DISPOSED OF, EXCEPT IN
ACCORDANCE WITH THE TERMS THEREOF, COPIES OF
WHICH ARE ON FILE AT THE PRINCIPAL OFFICE OF
THE COMPANY.
9. No Waiver. Notwithstanding any of the representations,
warranties, acknowledgments or agreements made herein by
Investor, Investor does not thereby or in any other manner waive
any rights granted to Investor under federal or state securities
laws.
10. Assignment. Investor agrees not to transfer or assign
this Agreement, or any of his interest therein.
11. No Revocation. Investor acknowledges and agrees that
his subscription for Shares, made by the execution and delivery
of this Agreement by Investor, is irrevocable and shall survive
the death or incapacity of Investor.
12. Closing. The closing of the purchase and sale of the
Shares (the "Closing") shall take place contemporaneously with
the parties' execution hereof (the "Closing Date") in accordance
with the terms of the Offering Materials. Execution by the
Company hereunder shall constitute its written acknowledgment of
the receipt of and payment for the full purchase price for the
Shares.
13. Miscellaneous.
(a) All notices or other communications to the Company
given or made hereunder shall be in writing and shall be
delivered or mailed by registered or certified mail, return
receipt requested, postage prepaid, to Chief Executive Officer,
INTAC International, Xxxx 0000, 00/X., Xxxxxx Xxxxxxxxx, 6 Xxxxx
Xxx Street, Xxxx Xxxx, Kowloon, Hong Kong, or such other
principal executive offices of the Company as shall then be in
existence. All notices or other communications to the Investor
given or made hereunder shall be in writing and shall be
delivered to Investor by registered or certified mail, return
receipt requested, postage prepaid, to the Investor's address as
set forth on the signature page to this Agreement.
(b) Notwithstanding the place where this Agreement may
be executed by any of the parties hereto, the parties expressly
agree that all of the terms and provisions hereof shall be
construed in accordance with and governed by the laws of the
State of Nevada applicable to agreements made and to be wholly
performed therein.
(c) This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter
hereof and may be amended only by an instrument in writing
executed by all parties.
(d) This Agreement shall be binding upon the heirs,
estates, legal representatives, successors and assigns of the
parties hereto.
(e) All terms used herein shall be deemed to include
the masculine, feminine and neuter, and the singular and plural
as the context requires. Captions herein are for convenience of
reference only and shall not alter or affect the meaning or
construction of the paragraphs hereof to which they relate.
(f) Each of the parties hereto agree to execute such
other documents, instruments or agreements as shall be reasonably
necessary, appropriate or required to evidence the intent of the
parties hereto.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed, or caused
to be executed, this Subscription and Investment Representation
Agreement this 25th day of October, 2001.
COMMODORE MINERALS, INC. INVESTOR:
d/b/a INTAC INTERNATIONAL
By: /s/ XXX XXXX /s/ XXXX BRAHIL
---------------------------- ------------------------------
Xxx Xxxx, Chief Executive Xxxx Brahil
Officer
Address: Xxxxxxxx Xxxxx,
Xxxxxxx Xxxxxx 98
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