HispanAmerica Corp.
PRE-INCORPORATION CONSULTATION AND SUBSCRIPTION AGREEMENT
This Agreement (the "Agreement") is made and entered into this 16th day August,
2002, by and between Xxxxxx X. Xxxxxxxx,Xxx Xxxxxx and Xxxx Xxxxxx (hereinafter
collectively referred to as the "parties").
WHEREAS, the parties desire to form a corporation pursuant to the laws of
the State of Delaware, under the name of HispanAmerica Corp., (the "Company"),
to engage, in the business of acting as a capital market access vehicle by
registering its securities with the U.S. Securities and Exchange Commission
under the Securities Act of 1933, and thereafter seeking to acquire one or more
existing businesses through merger or acquisition; and
WHEREAS, the parties desire to subscribe for the acquisition of
stock to be issued upon formation of the Company, and have mutually
agreed that the consideration for the issuance of such shares shall be
pre-incorporation services and assistance to the Company relating to its
formation, determination of an appropriate capital structure, and in
developing its business plan.
NOW, THEREFORE, in consideration of the foregoing, and in consideration
of the mutual covenants and promises hereinafter set forth, it is agreed as
follows:
1. Agreement to Form Corporation. The undersigned parties hereby
agree to form a corporation pursuant to the laws of the State of Delaware,
under the name of HispanAmerica Corp., (the "Company"). The
corporation shall be formed for the purpose of acting as a capital market
access vehicle by registering its securities with the U.S. Securities and
Exchange Commission under the Securities Act of 1933, and thereafter
seeking to acquire one or more existing businesses through merger or
acquisition.
2. Preincorporation Services. By execution of this Agreement, each of
the undersigned hereby agrees to provide such services as may be
necessary or appropriate prior to the incorporation of the Company, for
purposes of determining the feasibility of, and completing, the Company's
business plan, including, but not limited to, determining the Company's
capital needs, establishing an appropriate capital structure, investigating
the likelihood of finding a suitable merger or acquisition target, reviewing
applicable legal and regulatory restrictions imposed by the Securities and
Exchange Commission, the National Association of Securities Dealers,
and other governmental or regulatory organizations, and the like.
3. Agreement to Serve as Incorporator. By execution of this Agreement,
the parties hereby agree to serve as incorporator of the Company and
to provide services in conjunction with its incorporation and in
conjunction with the preparation of all necessary organizational
documents, including, but not limited to, articles of incorporation, bylaws,
subscription agreements, organizational meeting minutes, and the like.
4. Agreement to Serve as Officers and Directors. By execution of this
Agreement, the parties hereby agree to serve as officers and directors
of the Company following its incorporation, and in that capacity,
to assume responsibility for implementation of the Company's business plan.
5. Consideration. As consideration for the services described herein,
upon formation of the Company, the undersigned shall cause the
Company to issue and deliver to each of the parties hereto, and each of
the parties hereto hereby agrees to accept the following as full
consideration for the services rendered:
Name Date of Shares Aggregate Purchase
Sale Purchase Price
Price per Share
Xxxxxx X. Xxxxxxxx 08-16-02 1,500,000 $1,500.00(1) $0.001
Xxx Xxxxxx 08-16-02 1,500,000 $1,500.00(1) $0.001
Xxxx Xxxxxx 08-16-02 1,500,000 $1,500.00(1) $0.001
Each unit consists of one share of Common Stock.
The agreed upon fair market value of the shares for purposes of this
Agreement is $0.001 per share. Accordingly, upon issuance such shares
shall be valued on the books of the Company at $0.001 per share.
6. Exemption from Registration. The parties hereto intend and agree that
this Agreement shall serve as a written compensatory contract which,
upon formation of the Company, satisfies the requirements of Rule 701
adopted by the Securities and Exchange Commission under the Securities
Act of 1933, as amended. Accordingly, it is the intent of the parties that
the exemption from registration provided by Rule 701 shall be applicable
to the issuance of the shares.
7. Representations and Acknowledgments. The parties hereto make the
following representations and acknowledgments:
(a) The shares shall, upon issuance, have not been registered under
the Securities Act of 1933, as amended (the "Act"), or under any State Blue
Sky or securities laws and only the Company can register such securities
under the Act or under applicable State Blue Sky or securities laws.
(b) Upon issuance, the shares shall constitute "restricted securities"
as that term is defined in Rule 144 under the Act.
(c) Following issuance, the shares may not be sold or transferred for
value without registration under the Securities Act of 1933, as amended, or
under applicable State blue sky or securities laws, or in the absence of an
opinion of counsel acceptable to the Company that such registration is not
required under such Act or Acts, and it is not anticipated that the Company
will, at any time, seek to register the shares under the Act or under any
applicable state blue sky or securities laws.
(d) Following its formation and the issuance of the shares, the
Company may, from time to time, make stop transfer notations in the
Company's records to assure compliance with the Act and any applicable State
blue sky or securities laws.
(e) In accordance with the foregoing restrictions, the parties hereby
agree that a legend substantially to the effect of the following may be
placed upon all certificates representing the shares:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER
OTHER SECURITIES LAWS. SUCH SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS (i)
THEY SHALL HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE
SECURITIES ACT, OR (ii) THE COMPANY SHALL HAVE BEEN
FURNISHED WITH AN OPINION OF COUNSEL, SATISFACTORY
TO COUNSEL FOR THE COMPANY, THAT REGISTRATION IS
NOT REQUIRED UNDER ANY OF SUCH ACTS."
(f) The parties hereto are acquiring the shares upon issuance solely for
their own account and not on behalf of any other person.
(g) The parties hereto are acquiring the shares upon issuance for
investment purposes and not with the present intent of reselling or
otherwise distributing the Units or the underlying securities.
(h) By execution of this Agreement, the parties hereto agree to
execute and deliver to the Company, following its formation, any
document, or do any other act or thing, which the Company may
reasonably request in connection with the acquisition of the shares.
8. Assignment. None of the parties hereto, or their heirs, executors,
representatives or assigns shall sell, assign, create a security interest in,
pledge, or otherwise transfer or encumber the shares to be issued
hereunder, without the express prior written consent of each of the other
parties hereto.
9. Delaware Law. This Agreement shall be governed by, and construed
in accordance with the laws of the State of Delaware.
10. Binding Effect. This Agreement shall inure to the benefit of, and be
binding upon the parties, and their respective heirs, executors,
representatives and permitted assigns.
11. Entire Agreement. This Agreement supersedes all agreements
previously made between the parties relating to its subject matter. There
are no other understandings or agreements between the parties.
IN WITNESS WHEREOF, this Preincorporation Consultation and Subscription
Agreement Regarding HISPANAMERICA CORP., has been executed as
of the day and year first above written.
/s/ Xxxxxx X. Ptoniak
/s/ Xxx Xxxxxx
/s/ Xxxx Xxxxxx
HISPANAMERICA CORP.
SUBSCRIPTION AGREEMENT
AND INVESTOR QUESTIONNAIRE
HISPANAMERICA CORP.
(THE "COMPANY")
INSTRUCTIONS TO SUBSCRIPTION AGREEMENT
This section must be completed by all North Carolina and South Carolina
resident investors.
PLEASE FOLLOW DIRECTIONS BELOW.
1.Complete pages 2, 7, 9 (if applicable), 10 and 13. If you would like
a representative of the Company to contact you regarding any questions about
the Company call (000) 000-0000.
2.Make sure to complete the signature page 7.
3.Please make check payable in the amount of $___________, HispanAmerica
Corp. (minimum investment: $0.001/1,000 Shares).
SUBSCRIPTION AGREEMENT
HispanAmerica Corp.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx,XX 00000
Re: Regulation D, Rule 506 Corporate Offering -
4,500,000 Shares at $0.001/Share of Company Common Stock
Gentlemen:
1. Subscription. The undersigned hereby subscribes for and agrees to
purchase ___________________________ ( ) share(s) (the "Shares"), at a
price of $0.001 per Share of common stock (the "Common Stock") of HispanAmerica
Corp., (the "Company"), a Delaware corporation, for a total purchase
price of __________________ Dollars ($__________.00) (the "Purchase Price"),
in accordance with the terms and conditions of the offering (the "Offering")
made by the Company pursuant to the exemptions to registration afforded by
Rule 506 of the Securities Act of 1933 (the "Act") dated August 20, 2002,
(the "Disclosure Document"). This Subscription Agreement (the "Agreement") may
be rejected in whole or in part by the Company.
2. Payment of Purchase Price. The undersigned hereby tenders his or her
personal or certified check or a bank cashier's or treasurer's check made
payable to the order of "HispanAmerica Corp.." for the full amount
of the Purchase Price, namely, $0.001) for each Share purchased by the
undersigned (the "Purchase Price"), together with a fully completed and signed
Confidential Investor Questionnaire, a copy of which is attached hereto as
Exhibit A. A stock certificate of the Company, representing the aggregate
number of shares of Common Stock of the Company that the undersigned is
purchasing (the "Shares"), will be delivered to the undersigned promptly after
the successful completion of the Offering.
3. Acknowledgment of Receipt of Certain Documents and Instruments. The
undersigned hereby acknowledges his or her receipt of this subscription
agreement. Also, the undersigned may request in writing to receive any one,
or all, of the exhibits set forth below for inspection:
Exhibits Description
(1.1)- Certificate of Incorporation of the Company, as amended;
(2.1)- Bylaws of the Company;
(3.1)- Specimen Form of the Company's Common Stock Certificate;
(4.1)- Instruments Defining Rights of Security Holders/Minutes of
Annual/Special Meetings of the Company;
(5.1)- Opinion of Law Offices of Xxxx X. Xxxxxxxx
4. Representations and Warranties. The undersigned hereby represents and
warrants to the Company and its directors, officers and control persons, as
follows:
(a) He or she is a citizen of the United States and is at least 21
years of age.
(b) The residence of the undersigned set forth below is the true and
correct residence of the undersigned and he or she has no present intention of
becoming a resident or domiciliary of any other state, country or jurisdiction.
(c) He or she has received and read, and is familiar with, the
contents of the Disclosure Document and all of the Exhibits thereto that have
been requested for inspection (itemized in Section 4, above).
(d) The shares of Common Stock of the Company for which the
undersigned hereby subscribes will be acquired by the undersigned for
investment only, for the undersigned's own account, and not with a view to,
for offer for sale or for sale in connection with, the distribution or
transfer thereof. The shares of Common Stock of the Company are not being
purchased for subdivision or fractionalization thereof; and the undersigned
has no contract, undertaking, agreement or arrangement with any person or
entity to sell, hypothecate, pledge, donate or otherwise transfer (with or
without consideration) to any such person or entity any shares of Common Stock
of the Company which the undersigned hereby subscribes, and the undersigned
has no present plans or intention to enter into any such contract, undertaking,
agreement or arrangement.
(e) The present financial condition of the undersigned is such that
he or she is under no present or contemplated future need to dispose of any
portion of the shares of Common Stock of the Company for which the undersigned
hereby subscribes to satisfy any existing or contemplated undertaking, need or
indebtedness.
5. Acknowledgment of Certain Facts. The undersigned acknowledges his or
her awareness and understanding of the following:
(a) This Agreement may be rejected in whole or in part by the
Company in its sole and absolute discretion.
(b) The Company was organized in August 16, 2002.
(c) The purchase of one or more Shares is a speculative investment
which involves a high degree of risk of loss by the undersigned of his or her
entire investment in the Shares.
(d) Any "Risk Factors" set forth in a Disclosure Document.
(e) No federal or state agency has made any finding or determination
as to the fairness for public investment, nor any recommendation or
endorsement, of the Shares.
(f) Although there may not be restrictions on the transferability of
the shares of Common Stock of the Company; there may be no market for the
shares of Common Stock of the Company and, accordingly, it may not be possible
for the undersigned to liquidate readily, or at all, his or her investment in
the Company in case of an emergency or otherwise.
(g) The shares of Common Stock of the Company have not been
registered under either the federal Securities Act of 1933 (the "Act") or
applicable state securities laws (the "State Acts").
(h) The Company will file periodic reports with the Securities and
Exchange Commission ("SEC") pursuant to the provisions of the Securities
Exchange Act of 1934, as amended.
(i) All instruments, documents, records and books pertaining to this
investment have been made available for inspection by the undersigned's
attorney and accountant and the undersigned, and that the books and records of
the Company will be available upon reasonable notice, for inspection by
investors during reasonable business hours at its principal place of business.
There is available to the undersigned, by contacting Xxx Xxxxxx,
Secretary of the Company, the opportunity to ask questions and receive answers
concerning the terms and conditions of the Offering and to obtain any
additional information which the Company possesses or can obtain without
unreasonable effort or expenses that is necessary to verify the information
contained in the Disclosure Document.
6. Notices. Any notices or other communications required or permitted
hereby shall be given by registered or certified, U. S. first-class mail,
postage prepaid, return receipt requested, and if to the Company, at the
address at the beginning of this Agreement, and if to the undersigned, at the
address set forth below his or her signature hereto, or to such other
addresses as either the Company or the undersigned shall designate to the
other by notice in writing. All such notices and other communications shall be
deemed to be received when given, as aforesaid.
7. Successors and Assigns. This Agreement shall be binding upon the
Company and shall inure to the benefit of the Company, its directors, officers
and control persons, and its respective successors, heirs, personal and legal
representatives, guardians and assigns. This Agreement shall be binding upon
and inure to the benefit of the undersigned and his or her heirs, personal and
legal representatives and guardians. Neither this Agreement nor any part of it
shall be assignable by the undersigned.
8. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, and to the
extent it involves any United States statute, in accordance with the laws of
the United States.
IN WITNESS WHEREOF, the undersigned has executed, sealed and delivered
this Subscription Agreement this ______________ day of August 16, 2002.
SUBSCRIPTION
(a) Minimum Subscription $ 1.00
(1,000 Shares @$0.001/share)(1,000 Shares)
(b) Maximum Subscription $1,500.00
(1,500,000 Shares @$0.001/share)(1,500,000 Shares)
(c) Number of Shares _______________
TOTAL COMMITMENT $______________
WITNESS:
(Signature of Subscriber)
STATE OF )
) ss:
CITY/COUNTY OF )
On __________________, 2002, before me, the undersigned, a Notary Public,
personally appeared __________________________, well known to me to be the
person(s) whose name(s) is/are subscribed to the foregoing instrument and
acknowledged that he/she/they executed the same.
WITNESS my hand and official seal.
Notary Public
My Commission Expires:
EXHIBIT A
HISPANAMERICA CORP.
CONFIDENTIAL INVESTOR QUESTIONNAIRE
The Shares offered for sale pursuant to the registration exemption
afforded by Rule 506 of the Act and accompanying Disclosure Document dated
August 20, 2002, of the common stock (the "Common Stock") of HispanAmerica Corp.
(the "Company") a Delaware corporation, have not been registered under the
Securities Act of 1933 (the "Act"), or under the securities laws of any state
(the "State Acts"), and are being offered for sale and sold in reliance upon
exemptions from the registration requirements of the Act and the State Acts.
As a result, this Questionnaire must be completed by each potential investor
in order to assist the Company in determining whether the offer for sale and
sale of the Shares will qualify under such exemptions.
All information furnished is for the use of the Company and its
respective counsel and accountants. Such information will be held in
confidence by such persons, except that this Confidential Investor
Questionnaire may be furnished to such parties as the Company and its
respective counsel and accountants deem necessary or desirable to establish
compliance with federal or state securities laws.
SPECIAL NOTE:
CORPORATIONS, PARTNERSHIPS, TRUSTS, AND OTHER ENTITIES
Subscribers which are corporations, partnerships, trusts, or other
entities should have an authorized corporate officer, general partner,
trustee, or other authorized representative complete Section I of this
Confidential Investor Questionnaire, giving information concerning such
representative, and may optionally complete Section II of the Confidential
Investor Questionnaire giving information concerning the entity. In addition,
the following information should be provided with respect to the entity:
1. Name of Subscriber (Entity):
Address:
City: County: State:
Telephone:
Form (i.e., corporation, partnership, trust, other entity):
State in which organized:
States in which business conducted:
State in which business primarily conducted:
2. Is the Subscriber subscribing for that number of Shares having a total
purchase price of at least $150,000 and which does not exceed 20% of the
Subscriber's net worth?
Yes No
3. Was the Subscriber organized for the specific purpose of purchasing the
Shares?
Yes No
SECTION I
(ALL SUBSCRIBERS, OR THEIR AUTHORIZED CORPORATE OFFICER, GENERAL PARTNER,
TRUSTEE OR OTHER AUTHORIZED REPRESENTATIVE, IF THE SUBSCRIBER IS A
CORPORATION, PARTNERSHIP, TRUST, OR OTHER ENTITY, MUST COMPLETE THIS
SECTION I, GIVING INFORMATION CONCERNING HIMSELF OR HERSELF.)
(Please Print. Attach Additional Pages Where Necessary to Answer Questions
Fully.)
1. Name: Telephone:
Residence Address:
City: County: State: Zip:
Business Name:
Business Address:
City: County: Zip: Telephone:
Date of Birth: Social Security Number:
Communications should be sent to (check one):
Business: Residence Address:
SECTION II
"ACCREDITED INVESTOR" STATUS
(ONLY "ACCREDITED INVESTORS" MAY SUBSCRIBE TO THIS OFFERING AND MUST SATISFY
ONE OF THE CRITERIA SET FORTH BELOW.)
(a) Accredited investor.
"Accredited investor" shall mean any person who comes within any of the
following categories, or who the issuer reasonably believes comes within any
of the following categories, at the time of the sale of the
securities to that person:
(1) 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; any broker or
dealer registered pursuant to section 15 of the Securities Exchange Act of
1934; any insurance company as defined in section 2(13) of the Act; any
investment company registered under the Investment Company Act of1940 or a
business development company as defined in section 2(a)(48) of that Act; 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; 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; 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, or 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;
(2) Any private business development company as defined in section 202(a)(22)
of the Investment Advisers Act of 1940;
(3) Any organization described in section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts 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;
(4) Any director, executive officer, or general partner of the issuer of the
securities being offered or sold, or any director, executive officer, or
general partner of a general partner of that issuer;
(5) 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;
(6) Any natural person who had an individual income in excess of $200,000 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;
(7) 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 §230.506(b)(2)(ii);
and
(8) Any entity in which all of the equity owners are accredited investors.
SUBSCRIBERS MAY BE REQUIRED TO SUBMIT ADDITIONAL INFORMATION TO THE COMPANY TO
ENABLE THE COMPANY TO DETERMINE THE SUBSCRIBER'S SUITABILITY UNDER APPLICABLE
FEDERAL OR STATE LAWS OR TO VERIFY THE INFORMATION PROVIDED.
The Subscriber acknowledges that the Company and its directors, officers, and
control persons are relying upon the representations and warranties concerning
the Subscriber set forth in this Confidential Investor Questionnaire. The
Subscriber affirms, represents, and warrants to the Company and its directors,
officers, and control persons that he/she has read this entire document and
that all information provided by such investor is true, correct, accurate, and
complete and may be relied upon for purposes of determining the availability
of an exemption from registration for the offer and sale of the Shares.
(Date) (Signature)
(Printed or typed name)
