SUBSCRIPTION AGREEMENT [Under Regulation D of the Securities Act of 1933] DIGITALPOST INTERACTIVE, INC.
Exhibit
99.02
THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "ACT"), AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS
FROM THE REGISTRATION REQUIREMENTS OF THE ACT. SUCH SECURITIES MAY NOT BE
REOFFERED FOR SALE OR RESOLD OR OTHERWISE TRANSFERRED UNLESS THEY ARE REGISTERED
UNDER THE APPLICABLE PROVISIONS OF THE ACT OR ARE EXEMPT FROM SUCH
REGISTRATION. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") OR BY ANY STATE
SECURITIES ADMINISTRATION OR REGULATORY AUTHORITY.
[Under
Regulation D of the Securities Act of 1933]
DIGITALPOST INTERACTIVE, INC.,
a Nevada corporation (hereinafter the "Company") and the undersigned
(hereinafter the “Subscriber”) agree as follows:
WHEREAS:
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A. The
Company desires to issue an aggregate of 8,333,333 shares of common stock,
par value $.001 (“Shares”) at an offering price of $.03 per Share for
total proceeds of $250,000 (“Offering”);
and
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B. The
Company and Subscriber will effect a single or multiple closings (each a
“Closing”) until all of the Shares are sold which is expected to be prior
to September 30, 2008; and
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C. The
Subscriber desires to acquire the Shares set forth on the signature page
hereof.
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NOW, THEREFORE, for and in
consideration of the premises and the mutual covenants hereinafter set-forth,
the parties hereto do hereby agree as follows:
SUBSCRIPTION
FOR SHARES
1.1 Subject
to the terms and conditions hereinafter set-forth, the Subscriber hereby
subscribes for and agrees to purchase from the Company such number of Shares as
is set-forth upon the signature page hereof at a price equal to $.03 per Share,
and the Company agrees to sell such Shares to the Subscriber for said purchase
price subject to the Company's right to sell to the Subscriber such lesser
number of Shares as it may, in its sole discretion, deem necessary or
desirable. Upon execution, this subscription shall be irrevocable by
the Subscriber.
1.2 The
purchase price for the Shares subscribed to hereunder is payable by the
Subscriber prior to or contemporaneously with the execution and delivery of this
Subscription Agreement.
1.3 Any
acceptance by the Company of the Subscriber is conditional upon compliance with
all securities laws and other applicable laws of the jurisdiction in which the
Subscriber is resident. Each Subscriber will deliver to the Company
all other documentation, agreements, representations and requisite government
forms required by the lawyers for the Company as required to comply with all
securities laws and other applicable laws of the jurisdiction of the
Subscriber. The Company will not grant any registration or other
qualification rights to any Subscriber.
1.4 The
Subscriber acknowledges and agrees that all share certificates represented in
the Shares will be endorsed with the following legend in accordance with the
Act:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"), AND HAVE BEEN ISSUED IN RELIANCE UPON AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT PROVIDED BY REGULATION D
PROMULGATED UNDER THE ACT. SUCH SECURITIES MAY NOT BE REOFFERED
FOR SALE OR RESOLD OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION D, PURSUANT TO AN EFFECTIVE REGISTRATION UNDER THE ACT,
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT. HEDGING
TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH THE ACT”.
REPRESENTATIONS
AND WARRANTIES BY SUBSCRIBER
2.1 Subscriber
hereby severally represents and warrants to the Company the
following:
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(A)
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Subscriber
recognizes that the purchase of Shares subscribed to herein involves a
high degree of risk in that the Company has only recently commenced its
proposed business and may require substantial funds in addition to the
proceeds of this private placement;
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(B)
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An
investment in the Company is highly speculative and only investors who can
afford the loss of their entire investment should consider investing in
the Company and the Shares;
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(C)
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Subscriber
has been delivered a private placement offering memorandum (the
"Memorandum") furnished by the Company to the Subscriber and has had full
opportunity to review the Memorandum with the Subscriber’s legal and
financial advisers prior to execution of this Subscription
Agreement;
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(D)
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Subscriber
has such knowledge and experience in finance, securities, investments,
including investment in non-listed and non-registered securities, and
other business matters so as to be able to protect its interests in
connection with this transaction.
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(E)
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Not
used.
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(F)
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Subscriber
hereby acknowledges that the offering of the Shares has not been reviewed
by the United States Securities and Exchange Commission (the "SEC") and
that the Shares are being issued by the Company pursuant to an exemption
from registration provided by Regulation D pursuant to the United States
Securities Act.
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(G)
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Subscriber
is acquiring the Shares as principal for the Subscriber's own benefit
without a view toward resale of the
securities;
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(H)
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Subscriber
is not aware of any advertisement of the
Shares.
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(I)
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the
amount of the Subscriber’s investment does not exceed 10% of Subscriber’s
net worth and the Subscriber has sufficient net worth to sustain a
complete loss of Subscriber’s investment in the
Company;
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(J)
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Subscriber
is acquiring the Shares subscribed to hereunder as an investment for
Subscriber's own account, not as a nominee or agent, and not with a view
toward the resale or distribution of any part thereof, and Subscriber has
no present intention of selling, granting any participation in, or
otherwise distributing the same;
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(K)
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Subscriber
does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participation to such person,
or to any third person, with respect to any of the Shares sold
hereby;
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(L)
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Subscriber
has full power and authority to enter into this Agreement which
constitutes a valid and legally binding obligation, enforceable in
accordance with its terms;
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(M)
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Subscriber
has satisfied himself or herself as to the full observance of the laws of
his or her jurisdiction in connection with any invitation to subscribe for
the Shares and/or any use of this Agreement, including: (i) the legal
requirements within his/her jurisdiction for the purchase of the Shares,
(ii) any foreign exchange restrictions applicable to such purchase, (iii)
any governmental or other consents that may need to be obtained, and (iv)
the income tax and other tax consequences, if any, that may be relevant to
the purchase, holding, redemption, sale, or transfer of the
Shares.
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REPRESENTATIONS
BY THE COMPANY
3.1 The
Company represents and warrants to the Subscriber that:
(a) Organization,
Good Standing 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 corporate power and authority required to (i) carry on its business as
currently conducted and as proposed to be conducted by the Company in its
Company Reports (as defined in Section 3(d)(iii) hereof) and (ii) enter into
this agreement and consummate the transactions contemplated hereby and thereby.
Each of the Company and its subsidiaries is qualified to do business and is in
good standing in each jurisdiction in which the failure to so qualify would have
a Material Adverse Effect on the Company. As used in this Agreement, "Material
Adverse Effect" means a material adverse effect on, or a material adverse change
in, or a series of events which, in the aggregate, has a material adverse effect
on or change in, the business, financial condition, results of operations,
assets or liabilities of the applicable party and its subsidiaries, taken as a
whole.
(b) Capitalization.
As of September 28 2008, the authorized capital stock of the Company
consisted of: (i) 480,000,000 shares of Common Stock, of which approximately
59,000,000 shares are issued and outstanding; (ii) 5,000,000 shares of Common
Stock previously subscribed and to be issued and (ii)20,000,000 shares of
preferred stock authorized, of which none are issued and outstanding. All of
such shares of capital stock have been duly authorized for issuance, and all of
such shares which are issued and outstanding have been validly issued and are
fully paid, non-assessable and free of any liens or encumbrances other than any
liens or encumbrances created by or imposed upon the Purchasers
thereof.
(c) Due
Authorization. All corporate action on the part of the Company necessary for the
authorization, execution and delivery of, and the performance of all obligations
of the Company under, this agreement, has been taken, and this agreement
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except (i) as may be limited
by (A) applicable bankruptcy, insolvency, reorganization or others laws of
general application relating to or affecting the enforcement of creditors'
rights generally and (B) the effects of rules of law governing the availability
of equitable remedies and (ii) as rights to indemnity or contribution may be
limited under federal or state securities laws or by principles of public policy
thereunder.
(d) SEC
Reports; Financial Statements. The Company has previously furnished or made
available to the Purchaser its reports as filed with the Securities and Exchange
Commission (the "SEC") since January 2007, in each case, as amended through the
date hereof (collectively, the "Company Reports").
(e) Valid
Issuance of Stock.
(i) Valid
Issuance. The Shares have been duly and validly reserved for issuance and, upon
issuance, sale and delivery in accordance with the terms of the this agreement,
as the case may be, will be duly and validly issued, fully paid, non-assessable
and free of preemptive rights binding on the Company.
(ii)
Compliance with Securities Laws. The purchased common stock will be issued to
the Purchaser in compliance with applicable exemptions from (A) the registration
and prospectus delivery requirements of the Securities Act of 1933, as amended
(the "Securities Act") and (B) the registration and qualification requirements
of all applicable securities laws of the states of the United
States.
(f) Non-Contravention.
The execution, delivery and performance by the Company of this agreement and the
consummation by the Company of the transactions contemplated hereby and thereby,
do not: (i) contravene or conflict with the Company's Certificate of
Incorporation, as amended (the "Certificate"), or the Company's By-Laws; (ii)
constitute a violation of any provision of any federal, state, local or foreign
law or rule, regulation or requirement binding upon or applicable to the Company
or any of its subsidiaries; (iii) constitute a violation of any rule, regulation
or requirement of the National Association of Securities Dealers, Inc. ("NASD");
or (iv) constitute a default or require any consent under, give rise to any
right of termination, cancellation or acceleration of, or to a loss of any
benefit to which the Company or any of its subsidiaries is entitled under, or
result in the creation or imposition of any lien, claim or encumbrance on any
assets of the Company or any such subsidiary under, any contract to which the
Company or such subsidiary is a party or any permit, license or similar right
relating to the Company or such subsidiary or by which the Company or such
subsidiary may be bound or affected, except any such default, consent, right of
termination, cancellation or acceleration, loss or lien, claim or encumbrance
which, individually or in the aggregate, would not have a Material Adverse
Effect on the Company.
(g) Litigation.
Except as disclosed in the Company Reports, there is no action, suit,
proceeding, claim, arbitration or investigation (each, an "Action") pending or,
to the Company's best knowledge, threatened: (i) against the Company or any of
its subsidiaries, or any officer, director or employee of the Company or any of
its subsidiaries in connection with such officer's, director's or employee's
relationship with, or actions taken on behalf of, the Company or such
subsidiary; or (ii) against the Company or any of its subsidiaries, or any
officer, director or employee of the Company or any of its subsidiaries that
seeks to prevent, enjoin, alter or delay any of the transactions contemplated by
this Agreement.
(i) Brokers
and Finders. The Company has incurred the following brokerage or finders' fees
or agents' commissions or other similar payment in connection with this
Agreement: None.
TERMS
OF SUBSCRIPTION
4.1 Pending
acceptance of this subscription by the Company, all funds paid hereunder shall
be deposited by the Company and immediately available to the Company for its
general corporate purposes. In the event the subscription is not
accepted, the subscription funds will constitute a non-interest bearing demand
loan of the Subscriber to the Company.
4.2 In
the event the Company files a Form SB-2 registration statement with the SEC,
Subscriber shall be granted “Piggyback Registration rights.” The
Company will give Subscriber at least fifteen (15) days' prior written notice of
its intention so to do. Upon the written request of the Subscriber, received by
the Company within ten (10) days after the giving of any such notice by the
Company, to register any of the Shares, the Company will cause such Shares as to
which registration shall have been so requested to be included with the
securities to be covered by the registration statement proposed to be filed by
the Company.
4.3 The
Company agrees after the final Closing and receipt of the full $4,000,000.00
from Subscriber, that the Company will not need further funding for operations,
until at least one (1) year from the date of the final
Closing. Notwithstanding the foregoing, if funding is required for an
acquisition or merger at any time, the Company will give the Subscriber the
First Right of Refusal in writing to fully fund participate or in such financing
on the terms being offered.
4.4 Subscriber
hereby authorizes and directs the Company to deliver the securities to be issued
to such Subscriber pursuant to this Subscription Agreement to the Subscriber’s
address indicated herein.
4.5 Subscriber
acknowledges that the Shares are being offered on a "best efforts" basis and are
not subject to any minimum subscription requirements.
4.6 Subscriber
agrees to resell the Shares only in accordance with the provisions of Regulation
D of the Act, pursuant to registration under the Act, or pursuant to an
available exemption from registration pursuant to the Act.
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4.7
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The
Company agrees to the following antidultion
provisions:
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(a) Reorganization,
Reclassification or Recapitalization of the Company. In case of (i) a capital
reorganization, reclassification or recapitalization of the Common Stock (other
than in the cases referred to in Section 4.7(c) hereof), (ii) the Company's
consolidation or merger with or into another corporation in which the Company is
not the surviving entity, or a merger in which the Company is the surviving
entity but the shares of the Company's Common Stock outstanding immediately
prior to the merger are converted, by virtue of the merger, into other property,
whether in the form of securities, cash or otherwise, or (iii) the sale or
transfer of all or substantially all of the Company's assets, then, as part of
such reorganization, reclassification, recapitalization, merger, consolidation,
sale or transfer, lawful provision shall be made so that there shall thereafter
be upon issuance of purchased Shares any portion thereof at the time of such
reorganization, reclassification, recapitalization, consolidation, merger, sale
or transfer would have been entitled to receive in such reorganization,
reclassification, recapitalization, consolidation, merger, sale or transfer.
This Section 4.7(a) shall apply to successive reorganizations,
reclassifications, recapitalizations, consolidations, mergers, sales and
transfers and to the stock or securities of any other corporation that are at
the time after issuance of purchased common shares. If the per share
consideration payable to the purchaser for Shares in connection with any
transaction described in this Section 2(a) is in a form other than cash or
marketable securities, then the value of such consideration shall be determined
in good faith by the Company’s Board of Directors.
(b) Splits
and Combinations. If the Company at any time or from time to time after the date
of the Agreement subdivides any of its outstanding shares of Common Stock into a
greater number of shares, the number of purchased Shares in effect immediately
prior to such subdivision shall be proportionately increased, and, conversely,
if the outstanding shares of Common Stock are combined into a smaller number of
shares, the number of purchased Shares in effect immediately prior to such
combination shall be proportionately decreased.
(c) Reclassifications.
If the Company reclassifies or otherwise changes any of the Shares into the same
or a different number of securities of any other class or classes, the Shares
shall thereafter be convertible into such number and kind of securities as would
have been issuable as the result of such change with respect to the Shares
immediately prior to such reclassification or other change therefore shall be
appropriately adjusted.
(d) Not
used.
(e) Adjustment
Certificates. Upon any adjustment of the number of purchased Shares, a
certificate, signed by (i) the Company's Chief Financial Officer or (ii) any
independent firm of certified public accountants of recognized national standing
the Company selects at its own expense, setting forth in reasonable detail the
events requiring the adjustment and the method by which such adjustment was
calculated, shall be mailed to the purchaser of the Shares at the address set
forth below and shall specify the adjusted number of Shares issuable after
giving effect to the adjustment.
(f) No
Impairment. The Company shall not, by amendment of its Certificate of
Incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the Company, but shall
at all times in good faith assist in the carrying out of all provisions of this
Section 2 and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Purchaser against
impairment.
(g) Future
Securities Sales. Any time after the Effective Date, if the Company
sells Common Stock at a price per share below the offering price of $.03 per
share, the number of purchased Shares will adjust accordingly upward to reflect
the new lower sale price and to reflect the same percentage of ownership the
purchaser of the Shares had just prior to the future sale.
(h) Application.
Except as otherwise provided herein, all subsections of this section are
intended to operate independently of one another. If an event occurs that
requires the application of more than one subsection, all applicable subsections
shall be given independent effect.
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4.8
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The
Subscriber agrees to not engage in any short selling or short related
hedge transactions with the common stock issued under this
agreement.
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MISCELLANEOUS
5.1 Any
notice or other communication given hereunder shall be deemed sufficient if in
writing and sent by registered or certified mail, return receipt requested,
addressed to the Company, at its office at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and to the Subscriber at his address indicated on the last page
of this Subscription Agreement. Notices shall be deemed to have been given on
the date of mailing, except notices of change of address, which shall be deemed
to have been given when received.
5.2 Notwithstanding
the place where this Subscription Agreement may be executed by any of the
parties hereto, the parties expressly agree that all the terms and provisions
hereof shall be construed in accordance with and governed by the laws of the
State of Nevada.
5.3 The
parties agree to execute and deliver all such further documents, agreements and
instruments and take such other and further action as may be necessary or
appropriate to carry out the purposes and intent of this Subscription
Agreement.
ACCREDITED
INVESTOR STATUS
6.1 The
Subscriber represents and warrants to the Company that:
The
Subscriber is an “Accredited Investor” as defined by Rule 501 of Regulation D of
the 1933 Act.
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Initials_____
The Subscriber acknowledges having reviewed and considered the
definition of “Accredited Investor” attached to this Subscription
Agreement on page 6.
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Initials______
Subscriber also acknowledges that it is not the intent
of the Company to sell any Shares to any non-accredited investors and that
if Subscriber is not an accredited investor, Subscriber should not be
purchasing any Shares.
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IN WITNESS WHEREOF, this
Subscription Agreement is executed as of the ___day of ________
2008
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Number
of Shares Subscribed For:
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Signature
of Subscriber:
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Name
of Subscriber:
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Address
of Subscriber:
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Subscriber’s
Social Security/EIN/Tax ID No.
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ACCEPTED
BY: DIGITALPOST INTERACTIVE INC.
Signature
of Authorized
Signatory: ______________________________________________________
Name of
Authorized
Signatory: ______________________________________________________
Position
of Authorized
Signatory:
______________________________________________________
Date of
Acceptance:
______________________________________________________
Accredited Investor
Questionnaire
The
Subscriber will be an "Accredited Investor" as such term is defined in Rule 501
of Regulation D promulgated under the United States Securities Act of 1933, as
amended (the "Act") if the Subscriber is any of the following:
(1) Any
natural person whose individual net worth, or joint net worth with that person's
spouse, at the time of his purchase, exceeds $1,000,000;
(2) Any
natural person who had an individual income in excess of $300,000 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;
(3) Any
director, executive officer of the Company;
(4) Any 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 503(b)(2)(ii);
(5) Any
private business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940;
(6) Any
organization described in Section 501(c)(3) of the Internal Revenue Code,
corporation, 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;
(7) Any
bank as defined in Section 3(a)(2) of the Act or any 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;
(8) Any
insurance company as defined in Section 2(13) of the Act;
(9) Any
investment company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of that
Act;
(10) Any
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;
(11) Any
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;
(12) Any
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company, or registered investment adviser, 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; and
(13) Any
entity in which all of the equity owners are accredited
investors.