COLLEXIS HOLDINGS, INC. SUBSCRIPTION AGREEMENT
Exhibit
10.28
0000
Xxxx
Xx., Xxxxx 000
Xxxxxxxx,
XX 00000
Attn:
Xxxxxxx Xxxxxxxx
Gentlemen:
1. Subscription.
1.1 Offering.
The undersigned understands that Collexis Holdings, Inc., a corporation
organized under the laws of the State of Nevada (the “Company”), is considering
an investment/financing round of a maximum of $ and is offering (the “Offering”)
to issue to certain accredited investors up to a total of shares of
the
common stock, par value $.001 per share (the “Shares”), of the
Company for
a
price of $ per Share at the closing date, under the
terms
and conditions
set
forth in this
Subscription Agreement. The minimum value of a subscription under this
Subscription Agreement shall be $ per subscriber.
1.2 Subscription
& Acceptance.
The
undersigned (the “Subscriber”) hereby subscribes for
_________________________________ (___________) Shares for an aggregate issuance
price of $__________ on the terms and conditions described herein. The
Subscriber hereby delivers to the Company two executed copies of this
Subscription Agreement and an executed copy of the Questionnaire. Upon (i)
the
receipt of the amount indicated above (by bank wire to the bank account
identified in the wire instructions set forth on the signature page of this
Subscription Agreement) and (ii) acceptance of this subscription by Company,
the
Company agrees to have issued to the undersigned a certificate representing
the
Shares subscribed for registered in the name of the undersigned (the “Closing”),
whereupon use of the funds by the Company shall be unrestricted. The Company
shall promptly notify the Subscriber of the acceptance or non-acceptance of
the
Subscriber’s subscription and/or termination of the Offering. If this
subscription is not accepted by the Company, and the Subscriber is notified
thereof in writing, (i) this Subscription Agreement shall thereupon be deemed
to
be terminated by both the Subscriber and the Company and automatically be
terminated at such date of written notification, (ii) the Company will return
the subscription price to the Subscriber (if paid) without interest and (iii)
neither the Subscriber nor the Company shall owe each other anything or be
liable to the other in any respect.
2. Representations,
Warranties and Covenants of the Subscriber.
2.1 Questionnaire.
The
Subscriber represents and warrants to the Company that the statements set forth
on the Subscriber’s Questionnaire are true, correct and
complete.
2.2 Representations
and Warranties.
The
Subscriber, by signing this Subscription Agreement, represents and warrants
to
the Company that:
(a) All
Shares issued to the Subscriber are being issued for the Subscriber’s own
account (or for accounts for which the Subscriber has sole investment
discretion) for investment, without any intention of selling, further
distributing, or otherwise disposing of the Shares.
(b) The
Subscriber has been advised that none of the Shares are registered under the
federal Securities Act of 1933, as amended (the “33 Act”), or any state
securities laws. The Subscriber understands that the offering and sale of the
Shares is intended to be exempt from registration under the 33 Act by virtue
of
Section 4(2) thereof and the provisions of Regulation D promulgated thereunder,
based, in part, upon the representations, warranties and agreements of the
Subscriber contained in this Subscription Agreement and the
Questionnaire.
(c) The
Subscriber must bear the substantial economic risks of the investment in the
Shares indefinitely because none of the Shares may be sold, hypothecated or
otherwise disposed of until the undersigned can sell the Shares in compliance
with Rule 144. The Shares will not be, and the Subscriber has no rights to
require that the Shares be, registered under the Securities Act.
(d) The
Subscriber understands that neither the Securities and Exchange Commission
nor
any state securities commission and/or authority has approved the Shares or
passed upon or endorsed the merits of this Offering or confirmed the accuracy
or
determined the adequacy of any information provided by the Company to the
Subscriber.
(e) The
Subscriber shall
bear the
Subscriber’s
own
direct and indirect fees and expenses incurred in connection with the
negotiation and preparation of this Subscription Agreement and the consummation
and performance of the transactions contemplated herein. The Subscriber shall
(i) pay the
Subscriber’s
own
brokers’ and/or finders’ fees,
if
any, and
(ii)
indemnify the Company for any broker’s or finder’s fees for which it
is
responsible or claimed to be responsible.
(f) In
evaluating the suitability of an investment in the Company, the Subscriber
has
not relied upon any representation or other information (oral or written) other
than as stated herein or as contained in documents or answers to questions
furnished to the Subscriber by the Company.
(g) The
Subscriber is aware and understands that an investment in the Shares is a
private equity investment, is subject to loss of part or the total of such
investment (being the amount indicated in Section 1.2), and involves a high
degree of risk and has asked such questions and reviewed such documents as
the
Subscriber deems necessary for evaluating such risk.
-
2
-
(h) The
Subscriber does not presently have any reason to anticipate any change in the
Subscriber’s economic circumstances or any other particular occasion or event,
which would cause it to sell any of the Shares.
(i) The
Subscriber is fully aware that in agreeing to issue such Shares to it and in
entering this Subscription Agreement, the Company is relying upon the truth
and
accuracy of the representations and warranties of the Subscriber made
herein.
(j) The
Subscriber is experienced in investing in securities that have not been
registered under the 33 Act or listed on an exchange, specifically early stage
companies engaged in “high tech” or related businesses. The Subscriber has been
granted the opportunity to ask questions of, and receive answers from, the
Company concerning the terms and conditions of this Offering and the Company,
and to obtain such additional information as it deems necessary to verify the
accuracy of the information contained in the offering materials or which
otherwise may be desired to make an informed investment decision. The Subscriber
understands that the Company has made available all documents, records and
books
pertaining to this investment for inspection by the Subscriber’s attorney and/or
the Subscriber’s accountant and the Subscriber, and that the Company will make
available the books and records of the Company, upon reasonable notice, for
inspection by the Subscriber at reasonable hours at the Company’s principal
place of business.
(k) Any
certificate evidencing the Shares shall contain a legend similar to the
following:
THE
SECURITIES REPRESENTED HEREBY HAVE BEEN ISSUED AND SOLD IN RELIANCE UPON CERTAIN
EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), AND IN RELIANCE ON EXEMPTIONS FROM REGISTRATION AVAILABLE UNDER
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED FOR SALE,
SOLD OR TRANSFERRED AT ANY TIME IN THE ABSENCE OF (i) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS IN EFFECT
AT
SUCH TIME; OR (ii) AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, TO THE
EFFECT THAT SUCH OFFER SALE OR TRANSFER AT ANY TIME WILL NOT VIOLATE THE ACT
OR
ANY APPLICABLE STATE SECURITIES LAWS.
(l) Neither
the Company nor its directors, officers, shareholders or employees, nor any
other person, expressly or by implication, has represented, guaranteed or
warranted to the undersigned as to any of the following:
(1) the
Company’s future financial or operational performance; or
(2) that
the
past performance of the Company or its related entities, directors, officers,
shareholders or employees, will in any way indicate the results of the
Company.
-
3
-
3. Representations,
Warranties and Covenants of the Company.
3.1 Organization
and Existence.
The
Company is a corporation duly organized, validly existing and in good standing
under the law of the State of Nevada.
3.2 Corporate
Power.
The
Company (i) has all requisite corporate power and authority to own, lease and
operate its properties and carry on its business as now being conducted and
(ii)
is duly qualified and in good standing to do business in each jurisdiction
in
which the nature of its business or the nature or location of its assets require
such qualification and where the failure to be so qualified and in good standing
would have a Material Adverse Effect on the Company. For purposes of this
Agreement, “Material Adverse Effect” means, with respect to the Company, a
materially adverse effect on the business, results of operations, financial
condition, properties, assets or prospects of the Company.
3.3 Due
Authorization; Enforceability.
The
Company has all necessary corporate power and authority to enter into this
Subscription Agreement and to consummate the transactions contemplated hereby,
under the terms and conditions herein, including without limitation conditions
precedent.
3.4 Governmental
Consents.
Except
as
otherwise set forth in this Subscription Agreement, no
consent, approval, order or authorization of, or registration, declaration
or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality (each of the foregoing being a
“Governmental Entity”) is required with respect to the Company in connection
with the execution and delivery of this Subscription Agreement by the Company
or
the consummation by the Company of the transactions contemplated hereby.
3.5 Capitalization
of the Company.
The
Company has two classes of stock authorized, consisting of 277,713,000 Shares
and 10,000,000 shares of preferred stock, par value $.001 per share (the
“Preferred Stock”).
Without giving effect to the Offering, the Company has outstanding Shares and
no
shares of Preferred Stock. There are outstanding options and warrants to issue
approximately Shares.
4. Disclosure.
This
Offering is limited to certain accredited investors in reliance upon exemptions
contained in the 33 Act and Regulation D promulgated thereunder and applicable
state securities laws, as well as per the (other) terms and conditions set
forth
in this Subscription Agreement. Accordingly, the Company is offering the Shares
utilizing this Subscription Agreement rather than a formal private offering
memorandum. The Subscriber understands that this Subscription Agreement,
together with information concerning the Company available in the XXXXX database
on the Securities and Exchange Commission’s website, xxx.xxx.xxx,
and any
additional information or documents provided by the Company to the Subscriber,
contains less information than would be included in a formal private offering
memorandum. In making an investment decision, the Subscriber must rely on the
Subscriber’s own examination of the Company (including without limitation the
terms of the Offering), including the risks of the Offering as noted above
and
other risk factors described in the Company’s SEC filings.
-
4
-
5. Special
Acknowledgements.
(i)
NEW
YORK RESIDENTS
THE
OFFERING LITERATURE USED IN CONNECTION WITH THE OFFERING HAS NOT BEEN FILED
WITH
OR REVIEWED BY THE ATTORNEY GENERAL OF THE STATE OF NEW YORK PRIOR TO ITS
ISSUANCE AND USE. THE ATTORNEY GENERAL OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
(ii)
CALIFORNIA RESIDENTS:
THE
SALE
OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS OFFERING HAS NOT BEEN QUALIFIED
WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE
ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE
SALE
OF SECURITIES IS EXEMPTED FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105
OF
THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS OFFERING
ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATIONS BEING OBTAINED, UNLESS THE SALE
IS SO EXEMPT.
(iii)
CONNECTICUT RESIDENTS:
THE
SECURITIES OFFERED HEREBY ARE OFFERED PURSUANT TO A CLAIM OF EXEMPTION AND
HAVE
NOT BEEN REGISTERED UNDER SECTION 36-485 OF THE CONNECTICUT UNIFORM SECURITIES
ACT. THE SECURITIES OFFERED HEREBY CANNOT, THEREFORE, BE RESOLD OR TRANSFERRED
UNLESS THEY ARE REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
6. Indemnification
and Hold Harmless.
(a) If
during
the term of this Subscription Agreement, the Subscriber breaches any of the
agreements, representations or warranties which the Subscriber has made in
this
Subscription Agreement, the Subscriber shall indemnify and hold harmless the
Company (and its employees, agents, and affiliates) against any claim,
liability, loss, damage or expense (including reasonable attorneys’ fees and
other costs of investigating and litigating claims) caused, directly or
indirectly, by the Subscriber’s breach.
-
5
-
(b) If
during
the term of this Subscription Agreement, the Company breaches any of the
agreements, representations or warranties which the Company has made in this
Subscription Agreement, the Company shall indemnify and hold harmless the
Subscriber (and the Subscriber’s employees, agents and affiliates) against any
claim, liability, loss, damage or expense (including reasonable attorneys’ fees
and other costs of investigating and litigating claims) caused, directly or
indirectly, by the Company’s breach.
7. Confidentiality.
Information
concerning the Company is highly confidential and has been provided by the
Company to potential Subscribers solely for use in connection with this
Offering. This Subscription Agreement is personal to each offeree and does
not
constitute an offer to any other person. The Subscriber, by accepting delivery
of this Subscription Agreement, agrees not to disclose to anyone, other than
his
or her professional advisors, any information concerning the
Company.
8. Lock-up
Provisions.
The
Subscriber hereby agrees that, without the prior written consent of the Company,
during the period from the date the Subscriber acquires Shares under this
Subscription Agreement until the first anniversary of such date (the “Lock-Up
Period”), the Subscriber:
(a) will
not,
directly or indirectly, offer, sell, agree to offer or sell, solicit offers
to
purchase, grant any call option or purchase any put option with respect to,
pledge, borrow or otherwise dispose of any Shares purchased under this
Subscription Agreement, and
(b) will
not
establish or increase any “put equivalent position” or liquidate or decrease any
“call equivalent position” with respect to any Shares purchased under this
Subscription Agreement (in each case within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules
and regulations promulgated thereunder), or otherwise enter into any swap,
derivative or other transaction or arrangement that transfers to another, in
whole or in part, any economic consequences of ownership of any
Shares
purchased under this Subscription Agreement, whether or not such transaction
is
to be settled by delivery of Shares purchased under this Subscription Agreement,
other securities, cash or other consideration;
provided,
however,
that
the restrictions described in clauses (a) and (b) above do not apply to (x)
transfers of Shares as a gift or for no consideration, provided that each donee
agrees to be subject to the restrictions described in clauses (a) and (b) above;
or (y) tenders of Shares made in response to a bona fide third party take-over
bid made to all holders of Shares or any other acquisition transaction whereby
all or substantially all of the Shares are acquired by a third party. The
Subscriber hereby authorizes the Company during the Lock-Up Period to cause
any
transfer agent for the Shares to decline to transfer, and to note stop transfer
restrictions on the stock register and other records relating to, the Shares
purchased under this Subscription Agreement for which the undersigned is the
record holder.
-
6
-
9. Miscellaneous.
9.1 Governing
Law.
This
Subscription Agreement and the rights of the parties hereunder shall be governed
by and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed entirely within New York.
9.2 Entire
Agreement; Waiver.
This
Subscription Agreement constitutes the entire agreement between the parties
and
supersedes any prior agreements or understandings between them. This
Subscription Agreement may not be modified in any manner unless in writing
and
signed by the party against whom enforcement thereof is sought. No waiver of
any
breach or condition of this Subscription Agreement shall be deemed a waiver
of
any subsequent breach or condition of a like or different nature.
9.3 Binding
Effect.
This
Subscription Agreement and all the terms and provisions hereof shall be binding
upon and shall inure to the benefit of the parties hereto, and their respective
successors and permitted assigns; provided that this Subscription Agreement
may
not be assigned by the Subscriber without the Company’s prior written
consent.
9.4 No
Third Party Beneficiaries.
The
provisions of this Subscription Agreement and of any other agreement between
the
Company and the Subscriber are solely for the benefit of the Company and the
Subscriber and may be changed, terminated or revoked in writing at any time
by
mutual agreement between the Company and the Subscriber without notice or
liability to any other person.
9.5 Further
Assurances.
Each of
the parties hereto agrees to execute, acknowledge, deliver, file, record and
publish such further certificates, instruments, agreements and other documents
and to take all such further action as may be required by law or as may be
necessary or appropriate in order to carry out the provisions of this
Subscription Agreement.
9.6 Counterparts.
This
Subscription Agreement may be executed in several counterparts, each of which
shall be deemed an original but all of which shall constitute one and the same
instrument.
9.7 Section
Headings.
Section
headings herein have been inserted for reference only and shall not be deemed
to
limit or otherwise affect, in any manner, or be deemed to interpret in whole
or
in part any of the terms or provisions of this Subscription
Agreement.
-
7
-
EXECUTION
PAGE
IN
WITNESS HEREOF, the Subscriber has executed this Subscription
Agreement.
SUBSCRIBER:
Name (Print) __________________________________________________________________
Address
|
|||||||
Street
|
City
|
State
|
Zip
|
Social
Security Number or Tax Identification
Number:___________________________________________________________
Number
of
Shares subscribed for: ___________________
Subscription
Price $__________________
($ per Share)
See
wiring instructions below.
Date______________________,
2008
Wiring
instructions for the abovementioned Subscription Price:
National
Bank of South Carolina
Acct:
Collexis Holdings, Inc.
ABA#
000000000
Acct#
323591345904
-
8
-
Acknowledged
and Accepted on__________________,
2008
-
9
-
Be
sure
to send
(1)
two
signed copies of this Subscription Agreement; and
(2)
a
copy of the Questionnaire to:
Xxxxxxx
X. Xxxxxxxx, CEO
0000
Xxxx
Xxxxxx
Xxxxx
000
Xxxxxxxx,
XX 00000
Office:
(000) 000 0000
Fax:
(000) 000 0000
-
10
-