EXHIBIT 10.55
SUBSCRIPTION AGREEMENT
THIS AGREEMENT MADE EFFECTIVE AS OF FEBRUARY 25, 2002 (the "Effective Date").
BETWEEN:
E*Comnetrix Inc., a Canada Business Corporations Act company;
(the "Company")
AND:
Xxxx Xxxxx, an individual
(the "Purchaser")
WHEREAS:
A. The Purchaser wishes to subscribe for common shares of the Company for the
total purchase price of US$50,000 (the "Subscription");
B. The parties have agreed that the subscription price of the shares purchased
shall be $0.05 USD per share reflecting a market price discount to account for
certain restrictions imposed on the transfer and sale of the Shares by
Regulation S, promulgated under the Securities Act of 1933, as amended;
C. It is the intention of the parties to this Agreement that this Subscription
will be made pursuant to appropriate exemptions from the registration
requirements under all rules, policies, notices, orders and legislation of any
kind of all jurisdictions applicable to this Subscription;
NOW, THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants and agreements herein contained, the receipt of which is hereby
acknowledged, the parties covenant and agree with each other as follows:
1. The Purchaser hereby irrevocably subscribes for and agrees to purchase from
the Company, shares of common stock (the "Shares") of the Company for an
aggregate consideration of US$ 50,000 (the "Subscription Price").
2. The subscription price per Share shall $0.05 per share.
3. The Purchaser acknowledges that this subscription is subject to acceptance by
the Company. The Company may also accept this subscription in part. The
Purchaser agrees that if this subscription is not accepted in full, any funds
related to the portion of this subscription not accepted will be returned to the
Purchaser, without interest.
4. By executing this subscription, the Purchaser represents, warrants and
covenants to the Company (and acknowledges that the Company is relying thereon)
that:
(a) it has been independently advised as to the applicable hold period and
restrictions with respect to trading imposed in respect of the Shares
by securities legislation in the jurisdiction in which it resides, and
confirms that no representation has been made respecting the
applicable hold periods for the Shares and is aware of the risks and
other characteristics of the Shares and of the fact that the Purchaser
may not be able to resell the Shares except in accordance with
applicable securities legislation and regulatory policy;
(b) it has concurrently executed and delivered a Certificate of Qualified
Investor in the form attached as Schedule "A" to this subscription and
all represents, warrants and covenants are hereby incorporated to this
Agreement by reference;
(c) if required by applicable securities legislation, policy or order or
by any securities commission, stock exchange or other regulatory
authority, the Purchaser will execute, deliver, file and otherwise
assist the Company in filing such reports, undertakings and other
documents with respect to the issue of the Shares as may be required;
(d) this Agreement has been duly and validly authorized, executed and
delivered by and constitutes a legal, valid, binding and enforceable
obligation of the Purchaser upon acceptance of the Company;
(e) the Shares are not being subscribed for by the Purchaser as a result
of any material information about the Company's affairs that has not
been publicly disclosed;
(f) it has been informed that:
a. no securities commission, stock exchange or similar regulatory
authority has reviewed or passed on the merits of the Shares;
b. there is no government or other insurance covering the Shares;
c. there are substantial risks associated with the purchase of the
Shares; and
(g) the Purchaser agrees that the above representations, warranties and
covenants will be true and correct both as of the execution of this
subscription and as of the Closing (as hereinafter defined) and will
survive the completion of the issuance of the Shares.
5. The foregoing representations, warranties and covenants are made by the
Purchaser with the intent that they be relied upon in determining its
suitability as a purchaser of Shares and the Purchaser hereby agrees to
indemnify the Company against all losses, claims, costs, expenses and damages or
liabilities which any of them may suffer or incur caused or arising from
reliance thereon. The Purchaser undertakes to notify the Company immediately at
the address of 0000 Xxxxxx Xx., Xxx. 0000, Xxxxxxxxxx, Xxxxxxxxxx 00000 of any
change in any representation, warranty or other information relating to the
Purchaser set forth herein which takes place prior to the Closing.
6. The sale of the Shares will be completed at the Vancouver offices of Catalyst
Corporate Finance Lawyers, 1100 - 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0, counsel for the Company, at 9:00 a.m. (Vancouver
Time), or such other time as the Company and the Purchaser may agree (the
"Closing"), on February 29, 2000, or such other date as the Company and the
Purchaser may agree (the "Closing Date").
7. The Purchaser agrees to deliver to the Company not later than 5 p.m. on
February 28, 2000 (or two days before the Closing Date if such date is changed
in accordance with section 6 above and communicated to the subscriber) (a) this
duly completed and executed subscription form, and (b) such other documents as
may be requested as contemplated by paragraph 4(c) hereof. In addition, the
Purchaser will arrange for the payment of the Subscription Price in a manner
acceptable to the Company on or before 5 p.m. (Vancouver Time) on February 29,
2000 (or one day before the Closing Date if such date is changed in accordance
with section 6 above and communicated to the subscriber).
8. The contract arising out of the acceptance of this subscription by the
Company shall be governed by and construed in accordance with the laws of the
province of British Columbia and the laws of Canada applicable in the province
of British Columbia and represents the entire agreement of the parties hereto
relating to the subject matter hereof. Time shall be of the essence hereof.
9. The covenants, representations and warranties contained herein shall survive
the closing of the transactions contemplated hereby.
The Company shall be entitled to rely on delivery of a facsimile copy of this
subscription, and acceptance by the Company of a facsimile copy of this
subscription shall create a legal, valid and binding agreement between the
Purchaser and the Company in accordance with the terms hereof.
DATED at Emeryville, this 25h day of February, 2002.
Number of Shares: To Be Determined
Total Subscription Price: US$50,000
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(Name of Subscriber - please print) (Subscriber's Address)
Xxxx Xxxxx 000 X. Xxxx Xx., Xxx. 0
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(Authorized Signature)
Xxxx, Xxxxxx, 00000
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(Official Capacity or Title -
please print)
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(Please print name of individual whose (Telephone Number)
signature appears above if different
than the name of the subscriber printed
above.) ---------------------------------
(Facsimile Number)
Registration Instructions: Delivery Instructions:
-------------------------- ----------------------
Xxxx Xxxxx Xxxx Xxxxx
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Name Account Reference, if Applicable
c/o Ecomnetrix
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Account reference, if applicable Contact Name
000 X. Xxxx Xx., Xxx. 0 0000 Xxxxxx Xx., Xxx. 0000
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Address Address
Xxxxxxxxxx, Xx 00000
---------------------------------
Telephone Number
000-000-0000
---------------------------------
Facsimile Number
000-000-0000
ACCEPTANCE
The Company hereby accepts the above subscription as of this 25th day of
February, 2002.
EC*Comnetrix, Inc..
Per: /s/ J. Xxxx Mustad
------------------------------------
J. Xxxx Mustad, Chairman./CEO
on behalf of the Board of Directors
SCHEDULE "A" TO THE SUBSCRIPTION AGREEMENT
CERTIFICATE OF QUALIFIED INVESTOR
TO: E*Comnetrix, Inc., a Canada Business Corporations Act company
(the "Company")
1. The Purchaser understands and agrees that the Shares have not been and will
not be registered under the United States Securities Act of 1933, as amended
(the "1933 Act"), and the Shares are being offered and sold on behalf of the
Company, by the United States affiliate of the Underwriters, to the Purchaser in
reliance upon Regulation S under the 1933 Act.
2. The Purchaser represents, warrants and covenants (which representations,
warranties and covenants shall survive the Closing) to the Company (and
acknowledges that the Company is relying thereon) that:
(a) it has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits, and risks of the investment
and it is able to bear the economic risk of loss of the investment;
(b) it is purchasing the Shares for its own account or for the account of
one or more persons for investment purposes only and not with a view
to resale or distribution and, in particular, it has no intention to
distribute either directly or indirectly any of the Shares in the
United States or to U.S. persons; provided, however, that the
Purchaser may sell or otherwise dispose of any of the Shares pursuant
to registration thereof pursuant to the 1933 Act and any applicable
state securities laws or under an exemption from such registration
requirements;
(c) it , and if applicable, each person for whose account it is purchasing
the Shares:
(i) is not a "U.S. Person," as such term is defined by Rule 902 of
Regulation S under the 1933 Act (the definition of which
includes, but is not limited to, an individual resident in the
United States and an estate or trust of which any executor or
administrator or trustee, respectively, is a U.S. Person and any
partnership or corporation organized or incorporated under the
laws of the United States);
(ii) was outside the United States at the time of execution and
delivery of the Agreement;
(iii)no offers to sell the Securities were made by any person to the
Purchaser while the Purchaser was in the United States;
(iv) the Securities are not being acquired, directly or indirectly,
for the account or benefit of a U.S. Person or a person in the
United States;
(v) acknowledges that the Securities have not been registered under
the 1933 Act, and the Place undertakes and agrees that it will
not offer or sell the Securities unless such Securities are sold
in accordance with Regulation S under the 1933 Act, the
Securities are registered under the 1933 Act and the securities
laws of all applicable states of the United States, or such
Securities are sold pursuant to an available exemption from such
registration requirements. The Purchaser understands that the
Company has no obligation or present intention of filing a
registration statement under the 1933 Act in respect of the
Securities;
(d) it acknowledges that it has not purchased the Shares as a result of
any form of general solicitation or general advertising, including
advertisements, articles, notices or other communications published in
any newspaper, magazine or similar media or broadcast over radio, or
television, or any seminar or meeting whose attendees have been
invited by general solicitation or general advertising;
(e) it agrees that if it decides to offer, sell or otherwise transfer any
of the Shares, it will not offer, sell or otherwise transfer any of
such securities directly or indirectly, unless:
(i) the sale is to the Company;
(ii) the sale is made outside the United States in a transaction
meeting the requirements of Rule 904 of Regulation S under the
1933 Act and in compliance with applicable local laws and
regulations;
(iii)the sale is made in compliance with the exemption from the
registration requirements under the 1933 Act and in accordance
with any applicable state securities or "Blue Sky" laws; or
(iv) the securities are sold in a transaction that does not require
registration under the 1933 Act or any applicable U.S. state laws
and regulations governing the offer and sale of securities; and
with respect to subparagraphs (iii) and (iv) hereof, it has prior to
such sale furnished to the Company an opinion of counsel reasonably
satisfactory to the Company; (i) it has had the opportunity to ask
questions of and receive answers from the Company regarding the
investment, and has received all the information regarding the Company
that it has requested;
(g) there may be material tax consequences to the Purchaser of an
acquisition or disposition of Shares. The Company gives no opinion and
makes no representation with respect to the tax consequences to the
Purchaser under United States, state, local or foreign tax law of the
Purchaser's acquisition or disposition of such securities;
(h) upon the issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the 1933 Act or
applicable U.S. state laws and regulations, the certificates
representing the Shares will bear a legend in substantially the
following form:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). THESE SECURITIES MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF
REGULATION S UNDER THE 1933 ACT, (C) IN COMPLIANCE WITH THE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE 1933 ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, OR (D)
IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE
1933 ACT OR ANY APPLICABLE STATE LAWS AND REGULATIONS GOVERNING
THE OFFER AND SALE OF SECURITIES, AND THE HOLDER HAS, PRIOR TO
SUCH SALE, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL, OF
RECOGNIZED STANDING, OR OTHER EVIDENCE OF EXEMPTION, REASONABLY
SATISFACTORY TO THE COMPANY."
provided, that if any such securities are being sold under clause (B)
above, at a time when the Company is a "foreign issuer" as defined in
Rule 902 under the 1933 Act, the legend may be
removed by providing a declaration to Pacific Corporate Trust in
Vancouver, British Columbia, Canada in such form as the Company may
from time to time prescribe, to the effect that the sale of the
securities is being made in compliance with Rule 904 of Regulation S
under the 1933 Act;
(i) it is understood that the Company may instruct Pacific Corporate Trust
not to record any transfer of Shares without first being notified by
the Company that it is satisfied that such transfer is exempt from or
not subject to the registration requirements of the 1933 Act;
(j) it consents to the Company making a notation on its records or giving
instruction to the registrar and transfer agent of the Company in
order to implement the restrictions on transfer set forth and
described herein;
(k) the office of the Purchaser at which the Purchaser received and
accepted the offer to purchase the Shares is the address listed on the
signature page of the Subscription Agreement; and
(l) it acknowledges that the representations and warranties and agreements
contained in this certificate and the subscription agreement of even
date are made by it with the intent that they may be relied upon by
the Company in determining its eligibility or the eligibility of
others on whose behalf it is contracting thereunder to purchase
Shares. It agrees that by accepting Shares it shall be representing
and warranting that the representations and warranties above are true
as at the Closing with the same force and effect as if they had been
made by it at the Closing and that they shall survive the purchase by
it of Shares and shall continue in full force and effect
notwithstanding any subsequent disposition by it of such securities.
The foregoing representations, warranties and covenants are made by the
Purchaser with the intent that they be relied upon in determining its
suitability as a purchaser of Shares. The Purchaser undertakes to notify the
Company immediately at E*Comnetrix, Inc., 0000 Xxxxxx Xx., Xxx. 0000,
Xxxxxxxxxx, XX 00000, of any change in any representation, warranty or other
information relating to the Purchaser set forth herein which takes place prior
to the Closing.
/s/ Xxxx Xxxxx
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(Signature of Purchaser)
Xxxx Xxxxx
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(Name of Purchaser - please print)
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(Capacity)
