Exhibit 10.13
Purchaser's Name: Asia Pacific Ventures
---------------------
Date: November 23, 2001
-------------------------------------
Number of Shares: 1,000,000 shares of FinancialContent, Inc.'s Common Stock
Total Investment: $100,000.00
FINANCIALCONTENT, INC.
a Delaware corporation
SUBSCRIPTION AGREEMENT
FinancialContent, Inc.
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx, General Counsel
Gentlemen:
1. Application. The undersigned, intending to be legally bound, hereby
subscribes for One Million (1,000,000) shares (the "Shares") of the Common Stock
of FinancialContent, Inc., a Delaware corporation (the "Company") at a purchase
price of $0.10 per share, for an aggregate consideration of One Hundred Thousand
Dollars ($100,000.00). The undersigned understands that this subscription may be
accepted or rejected in whole or in part by the Company in its sole discretion.
At any time until midnight Pacific Time on the 5th day following the date the
Undersigned executes this subscription, the Undersigned may terminate and
rescind this subscription by written notice delivered to the Company by
facsimile to 650.652.3990. Thereafter, this subscription is and shall be
irrevocable unless the Company for any reason rejects this subscription. This
subscription is submitted to you in accordance with and subject to the terms and
conditions described in this Subscription Agreement.
2. Wire Transfer of Funds, Payment, and Conversion.
(a) Payment for the Shares in cash shall be made by wire or
deposited by certified check into the following account:
Citibank
ABA# 021-000089
Acct Name: Xxxx Xxxxxxx Xxxxxxxx
A/C #
#
FinancialContent, Inc.
(b) Payment shall be made as follows:
The undersigned shall pay to the Company the sum of $25,000.00 no later than
November 26, 2001; and
(c) Conversion of debt for equity shall be made as follows:
1
The undersigned will convert the Promissory Notes dated October 1, 2001 and
October 29, 2001, in the amount of $40,000.00 and $35,000.00, respectively, to
equity in the Company no later than November 26, 2001.
3. Representations and Warranties. The undersigned represents and
warrants as follows:
(a) No oral representations have been made or oral information
furnished to the undersigned in connection with the purchase of the Shares; all
documents, records and books pertaining to the investment in the Shares have
been made available for inspection by the undersigned, his attorney, accountant,
purchaser, representative and tax advisor, and the undersigned and/or his
advisors have had a reasonable opportunity to ask questions of and receive
answers from the Company concerning the Shares.
(b) The undersigned is able to bear the economic risks of an
investment in the Shares for an indefinite period and at the present time could
afford the loss of such investment.
(c) The undersigned understands that an investment in the Shares
involves certain risks, including loss of the entire amount of such investment,
and has the knowledge and experience in financial and business matters generally
such that the undersigned is capable of evaluating the merits and risks of an
investment in the Shares. Further, the undersigned has carefully considered and
has taken full cognizance of, and understands all of, the risks related to the
purchase of the Shares.
(d) The undersigned understands and acknowledges that the Shares
have not been registered for sale under the Securities Act of 1933, as amended,
and under certain state securities laws in reliance upon exemptions therefrom
for non-public offerings, that they may not be sold or transferred unless the
sale or transfer is subsequently registered or an exemption from such
registration is available, that there will be no public market available to sell
or dispose of the Shares, and that the Company shall and must refuse to transfer
the Shares if the undersigned's sale is not made in compliance with the
provisions of Regulation S and the applicable U.S. federal and state securities
laws.
(e) The Shares are being acquired solely for the undersigned's
account, for investment purposes only and not with a view to the distribution,
assignment or resale thereof and no other person has a direct or indirect
beneficial interest in such Shares.
(f) The undersigned, if a corporation, partnership, trust or other
entity, is authorized and otherwise duly qualified to purchase and hold the
Shares and to enter into this Subscription Agreement, and such entity has not
been formed for the specific purpose of acquiring the Shares, unless all of its
equity owners qualify as accredited investors under one or more of the standards
set forth below.
(g) The undersigned: (i) has a pre-existing business relationship
with the Company and (ii) by reason of the undersigned's business or financial
experience or the business or financial experience of the undersigned's
2
professional advisors who are unaffiliated with, and who are not compensated by,
the Company or any affiliate thereof, directly or indirectly, can be reasonably
assumed to have the capacity to protect the undersigned's interests in
connection with the investment in the Shares.
(h) The undersigned is a "non-U.S. person" as that term is defined
in the Securities Act of 1933 and does not meets the definition of any one of
the following
(i) Any natural person resident in the United States.
(ii) Any partnership or corporation organized or
incorporated under the laws of the United
States;
(iii)Any estate of which any executor or
administrator is a U.S. person1;
(iv) Any trust of which any trustee is a U.S.
person2;
(v) Any agency or branch of a foreign entity located
in the United States3;
(vi) 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
States4; and
1 Any estate of which a professional fiduciary acting as executor or
administrator is a U.S. Person shall not be deemed a U.S. person if:
(i) An executor or administrator of the estate who
is not a U.S. person has sole or shared
investment discretion with respect to the assets
of the estate; and
(ii) The estate is governed by foreign law.
2 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.
3 Any agency or branch of a U.S. person located outside the United
States shall not be deemed a "U.S. person" if:
(i) The agency or branch operates for valid business
reasons; and
(ii) 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.
4 Any discretionary 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." Any 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.
3
(vii)Any partnership or corporation if: (A)
organized or incorporated under the laws of any
foreign jurisdiction; and (B) formed by a U.S.
person principally for the purpose of investing
in securities not registered under the Act,
unless it is organized or incorporated, and
owned, by accredited investors (as defined in
Rule 501(a)) who are not natural persons,
estates or trusts.
(i) The undersigned is an "Accredited Investor" as that term is
defined under the Act or is a distributor or sales representative of the
Company's products or is affiliated with a distributor or sales representative.
The undersigned is an investor satisfying any one of the following:
(i) The undersigned has (along with a spouse) a net
worth which exceeds $1,000,000 at the time of
the purchase.
(ii) The undersigned has had an individual income in
excess of $200,000 in 1998 and 1999 (or joint
income with a spouse which exceeds $300,000) and
have a reasonable expectation of reaching the
same income level (or joint income level) in
2000.
(iii)The undersigned is a bank or savings and loan
association acting in its individual or
fiduciary capacity, any broker-dealer, any
insurance company, investment company, business
development company, small business investment
company or employee benefit plan (a) if the
investment decision is made by a fiduciary which
is a bank, savings and loan association,
insurance company or registered investment
advisor or (b) if the plan has total assets in
excess of $500,000,000 or (c) if a self-directed
plan, the investment decisions are made solely
by persons that are accredited investors;
(j) The undersigned has read and understands this Agreement,
understands the contents of each document and has been advised to and has had an
opportunity to consult with the undersigned's legal, tax and business advisors.
(k) The undersigned has all requisite power, authority and capacity
to acquire and hold the Shares and to execute, deliver and comply with the terms
of each of the instruments required to be executed and delivered by the
undersigned in connection with subscription for Shares as contemplated by the
Agreement, and such execution, delivery and compliance does not conflict with,
or constitute a default under any instruments governing the undersigned, any
law, regulation or order, or any agreement to which the undersigned is a party
or by which the undersigned may be bound.
(l) The undersigned is unaware of and is in no way relying on, any
form of general solicitation or general advertising in connection with the sale
or offer of the Shares.
4
(m) The undersigned acknowledges that the certificates representing
the shares of Common Stock underlying the Shares shall be stamped or otherwise
imprinted with a legend substantially in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS AND ARE BEING OFFERED AND SOLD ONLY
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT. THESE SECURITIES MAY NOT BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY,
PRIOR TO THE DATE WHICH IS TWO (2) YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY), ONLY (A) TO
THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
RIGHT PRIOR TO ANY OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATES AND/OR OTHER INFORMATION REASONABLY SATISFACTORY
TO THE COMPANY. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF FURTHER AGREES NOT TO ENGAGE IN HEDGING TRANSACTIONS
INVOLVING THESE SECURITIES UNLESS SUCH TRANSACTIONS MEET THE
REQUIREMENTS AND COMPLY WITH THE SECURITIES ACT.
4. Indemnification. The undersigned agrees to indemnify and hold
harmless, the Company, and its agents, representatives and employees from and
against all liability, damage, loss, cost and expense (including reasonable
5
attorneys' fees) which they may incur by reason of the failure of the
undersigned to fulfill any of the terms or conditions of this Subscription
Agreement, or by reason of any inaccuracy or omission in the information
furnished by the undersigned herein or any breach of the representations and
warranties made by the undersigned herein, or in any document provided by the
undersigned to the Company.
5. Registration Rights. (a) In addition to any other registration
rights of the undersigned, if the Shares are not registered for resale at the
time the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the undersigned) any of its
Common Stock under the Act (other than a registration relating solely for the
sale of securities to participants in a Company stock plan or a registration on
Form S-4 promulgated under the Act or any successor or similar form registering
stock issuable upon a reclassification, upon a business combination involving an
exchange of securities or upon an exchange offer for securities of the issuer or
another entity) (a "Piggyback Registration Statement"), the Company shall cause
to be included in such Piggyback Registration Statement ("Piggyback
Registration") all of the Shares (the "Registrable Securities") to the extent
such inclusion does not violate the registration rights of any other
securityholder of the Company granted prior to the date hereof. Nothing herein
shall prevent the Company from withdrawing or abandoning the Piggyback
Registration Statement prior to its effectiveness.
(b) Limitation on Obligations to Register under a Piggyback
Registration. In the case of a Piggyback Registration pursuant to an
underwritten public offering by the Company, if the managing underwriter
determines and advises in writing that the inclusion in the registration
statement of all Registrable Securities proposed to be included would interfere
with the successful marketing of the securities proposed to be registered by the
Company, then the Company's obligation to include any or all of the Registrable
Securities in such Piggyback Registration Statement shall be so limited. If
required by the managing underwriter of such an underwritten public offering,
the Undersigned shall enter into a reasonable agreement limiting the number of
Registrable Securities to be included in such Piggyback Registration Statement
and the terms, if any, regarding the future sale of such Registrable Securities.
6. Miscellaneous.
(a) This Subscription Agreement shall survive the death or
disability of the undersigned and shall be binding upon the undersigned's heirs,
executors, administrators, successors and permitted assigns.
(b) This Subscription Agreement has been duly and validly
authorized, executed and delivered by the undersigned and constitutes the valid,
binding and enforceable agreement of the undersigned. If this Subscription
Agreement is being completed on behalf of a corporation, partnership or trust,
it has been completed and executed by an authorized corporate officer, general
partner or trustee.
6
(c)This Subscription Agreement and the documents referred to herein
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and together supersede all prior discussions or agreements
in respect thereof.
(d)Within five (5) days after receipt of a written request from the
Company, the undersigned agrees to provide such information, to execute and
deliver such documents, including without limitation, the Certification of
Compliance with Regulation S and the Subscriber's Questionnaire, and to take, or
forbear from taking, such actions or provide such further assurances as
reasonably may be necessary to correct any errors in documentation, to comply
with any and all laws to which the Company is subject.
(e)The Company shall be notified immediately of any change in any
of the information contained above occurring prior to the undersigned's purchase
of the Shares or at any time thereafter for so long as the undersigned is a
holder of the Shares.
(f)The Subscription Agreement and the rights, interests and
obligations hereunder are not transferrable or assignable by the undersigned and
the undersigned acknowledges and agrees that any transfer or assignment of the
Shares shall be made only in accordance with all applicable laws.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement as of the date first written above.
Subscription Amount: $100,000.00 Residence or Business Address:
----------------------------------
(Signature of Subscriber)
----------------------------------
(Print or Type Name)
----------------------------------
Xxxxxx
----------------------------------
Xxxx Xxxxx Zip Code
Social Security or Taxpayer Identification
No. U.S. Company ____ Yes ____ No
Name of Prospective Purchaser: Asia Pacific Ventures
Date: ____________________
7
--------
