Exhibit 4.2
Whirlwind Marketing, Inc.
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is made as of the 15th day of November 2001, by
and between ("Noteholder"), and WHIRLWIND MARKETING, INC., a Delaware
corporation (the "Company").
Background
As more fully set forth herein, the Noteholder is the holder of a
promissory note of the Company in the principal amount of $______ ("Note") and
is exchanging the Note for shares of Common Stock of the Company.
Agreement
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
1. Purchase. Noteholder hereby irrevocably and fully assigns and conveys
the Note to the Company and will receive from the Company in full and complete
payment for the Note shares of Common Stock of the Company ("Stock"). This
exchange represents a conversion rate of $.80 per share.
Effective as of the date hereof, the Noteholder hereby absolutely and
irrevocably sells, assigns and transfers to the Company all of the Noteholder's
right, title and interest in and to the Note. The Noteholder hereby represents
and warrants that the Note is owned beneficially and of record by the
Noteholder. The Noteholder has full authority to sell, assign and transfer the
Note and the Company has acquired good title thereto, free and clear of all
liens, charges, encumbrances, conditional sales agreements, adverse claims, or
other obligations whatsoever.
The Noteholder understands that any interest accrued through the date of
the exchange of my Note has already been paid to the undersigned by the Company.
The Noteholder has enclosed herewith and delivered to the Company the
original certificate representing the Note. The Noteholder does hereby
irrevocably constitute and appoint the Company as attorney to transfer the Note
on the books of the Company, with full power of substitution.
A certificate representing the Stock shall be delivered to Noteholder
within five days following the date hereof.
Promptly after the date hereof, the Company shall at its sole cost and
expense use its best efforts to register the Stock for resale by Noteholder
under the Securities Act of 1933, as amended (the "Act"), and to keep such
registration statement effective for a period of at least nine months.
2. Representations And Warranties of the Company. The Company represents
and warrants to Noteholder that the issuance of the Stock has been duly
authorized and the Stock when issued will be validly issued, fully paid and
non-assessable.
3. Representations and Warranties of Noteholder. Noteholder hereby makes
the following representations and warranties to the Company:
A. Noteholder understands that the Stock is being offered and sold
under an exemption from registration under the Act, and offering exemptions
contained in the securities laws of other jurisdictions; that Noteholder is
purchasing the Stock without being furnished any offering literature or
prospectus of any sort relating to the Company; that all documents, records and
books pertaining to this investment and the Company have been made available by
the Company to Noteholder and Noteholder's representatives.
B. Noteholder understands that the Stock has not, and except as
provided above, will not be registered under the Act or any state securities
laws, and that in order to sell or transfer such Stock, such Stock must either
be registered under such laws or an appropriate exemption from registration must
be available.
C. Noteholder is a bona fide resident and domiciliary of the State of
Pennsylvania and has no present intention of becoming a resident or domiciliary
of any other jurisdiction.
D. Noteholder is able to fend for itself in this transaction.
E. Noteholder confirms that Noteholder understands and has fully
considered for purposes of this investment that there are substantial
restrictions on the transferability of the Stock and there is currently no
established public market for the Stock and no liquidity is present in
connection with the Stock.
F. Noteholder has such knowledge and experience in financial and
business matters that Noteholder is capable of evaluating the merits and risks
of an investment in the Stock and of making an informed investment decision.
G. Noteholder confirms that in making Noteholder's decision to
purchase the Stock hereby subscribed for Noteholder has relied solely upon
Noteholder's own independent investigation of the Company and not on any
representations, warranties, or statements made by or on behalf of the Company
(other than those made herein), and that Noteholder has been given the
opportunity to ask questions of and to receive answers from the Company
concerning the Company, its financial condition and business, and to obtain any
additional information which the Company possesses or can acquire without
unreasonable effort or expense, and Noteholder believes it has received all the
information it considers necessary or appropriate for deciding whether to
purchase the Stock.
H. The Stock hereby subscribed for is being acquired by Noteholder in
good faith solely for Noteholder's own account for investment purposes only and
is not being purchased with a view to or for the resale, distribution,
subdivision or fractionalization thereof; Noteholder has no contract,
understanding, undertaking, agreement or arrangement, formal or informal, with
any person to sell, transfer or pledge to any person the Stock for which
Noteholder hereby subscribes for or any part thereof; Noteholder understands
that the legal consequences of the foregoing representations and warranties are
that Noteholder must bear the economic risk of an investment in the Stock for an
indefinite period of time because the Stock has not been registered under the
Act or applicable state securities laws and therefore cannot be sold unless the
Stock is subsequently registered under the Act or applicable state securities
laws (which the Company has agreed to do as set forth above) or an exemption
from such registration is available.
I. Noteholder consents to the placement of a legend on the certificate
representing the Stock being purchased by Noteholder, which legend will be in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
OTHER JURISDICTION. THE SALE OR OTHER DISPOSITION OF THESE SECURITIES
IS PROHIBITED UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
SATISFACTORY TO IT AND ITS COUNSEL THAT SUCH SALE OR OTHER DISPOSITION
CAN BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND
OTHER APPLICABLE STATUTES. BY ACQUIRING THE SECURITIES REPRESENTED BY
THIS CERTIFICATE, THE HOLDER OF THIS CERTIFICATE REPRESENTS THAT THE
HOLDER HAS ACQUIRED THESE SECURITIES FOR INVESTMENT AND THAT THE
HOLDER WILL NOT SELL OR OTHERWISE DISPOSE OF THESE SECURITIES WITHOUT
REGISTRATION OR OTHER COMPLIANCE WITH THE AFORESAID ACTS AND THE RULES
AND REGULATIONS THEREUNDER."
J. The execution and delivery of this Agreement, and the consummation
of the transactions contemplated hereby has been duly authorized by Noteholder.
4. Survival of Representations, Warranties, Covenants, Agreements and
Remedies. Except as specifically provided otherwise herein, all representations,
warranties, covenants, agreements and remedies of the parties hereto, shall
survive the date hereof.
5. Entire Agreement. This Agreement constitutes the entire understanding
and agreement between the parties hereto with respect to the transactions
contemplated herein, supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties, and there have been no warranties, representations or promises, written
or oral, made by any of the parties hereto except as herein expressly set forth
herein.
6. Binding Agreement. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, as well as their respective heirs, personal
representatives, successors and assigns but no party may assign its obligations
hereunder.
7. Pennsylvania Law Controls. This Agreement shall be construed in
accordance with and shall be governed by the laws of the Commonwealth of
Pennsylvania without regard to its conflicts of law rules.
IN WITNESS WHEREOF, each of the undersigned, intending to be legally bound
hereby, has executed this Subscription Agreement as of the date set forth above.
NOTEHOLDER:
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Signature
Print Name:
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WHIRLWIND MARKETING, INC.
By:
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Xxxx X. Xxxxxx, President
