EXHIBIT 10.11
SUBSCRIPTION AGREEMENT AND REPRESENTATIONS
REGULATION S
TO: XXXXXXXXXXXX.XXX, INC.
Gentlemen:
NETMAXIMIZER. COM, INC., a Florida Corporation ("you" or the "Company") has
offered (the "Offering") to sell to CONSENSUS INVESTMENTS LIMITED ("I" or "me")
666,666 Units at $1.50 per Unit, where each Unit consists of one share of your
common stock ("Shares") and two warrants ("Warrants") each entitling the holder
to purchase one share of your common stock (the shares which may be acquired by
the exercise of Warrants are the "Warrant Shares") at an exercise price of
$1.875 per share. The Warrants will expire five years from the date of their
issuance.
As of the date hereof, I hereby subscribe for and agree to purchase all 666,666
Units by delivering to you immediately available funds in payment of the
purchase price together with this executed Subscription Agreement. I understand
this subscription is subject to your acceptance and that if you do not accept
this subscription, you will return the purchase price payment herewith
delivered. In order to induce the Company to accept my offer, I advise you as
follows:
(1) Receipt of copies of the SEC Documents and Other Documents. I am aware
that your Registration Statement on Form-10 was filed with the
Securities Exchange Commission on December 7, 1999, and became
effective on February 7, 2000. Following the effective date, you filed
an annual report on Form 10K for the year ended December 31, 1999, and
thereafter have filed regular quarterly reports on Form 10-Q, all
pursuant to the Securities Exchange Act of 1934, as amended and the
rules and regulations of the SEC promulgated thereunder (collectively,
the Form 10, Form 10-K and various Forms 10-Q are referred to herein as
the "SEC Documents"). I have received from you or otherwise had access
to true and complete copies of the SEC Documents. I have been provided
with access to all information concerning you, including but not
limited to the SEC Documents, the terms and conditions of the Offering
of the Units, the Units themselves, the securities underlying the Units
and your current business plan and proposed plan of operations for the
purpose of making an informed investment decision.
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(2) Availability of Information. I hereby acknowledge that the Company has
made available to me the opportunity to ask questions of, and receive
answers from the Company and any other person or entity acting on its
behalf, concerning the terms and conditions of the Offering and the
information contained in the SEC Documents and other corporate
documents and to obtain any additional information, to the extent the
Company possesses such information or can acquire it without
unreasonable effort or expense, necessary to verify the accuracy of the
information provided by the Company and any other person or entity
acting on its behalf.
(3) Securities Offered. I understand that none of the Units, the Shares,
the Warrants or the Warrant Shares (collectively the Shares, the
Warrants and the Warrant Shares are the "Securities") have been
registered under the Securities Act of 1933, as amended (the "1933
Act"), or any state securities laws.
(a) No federal or state agency has passed upon the Units or the
Securities or made any finding or determination as to the
fairness of this investment.
(b) I understand that if my subscription offer is accepted and the
Securities are sold to me, I cannot sell or otherwise dispose
of the Securities unless the Securities are registered under
the 1933 Act or the state securities laws or exemptions
therefrom are available (and consequently, that I must bear
the economic risk of the investment for an indefinite period
of time).
(c) I understand that the Company has no obligation now or at any
time to register the Securities under the Act or any state
securities laws.
(d) Legend. Although shares of your Common Stock trade on the
NASDAQ Bulletin Board, because they have not been registered
under the 1933 Act, each of the certificates representing the
Securities which you deliver to me, as appropriate, will bear
a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. THE SECURITIES MAY NOT BE OFFERED FOR
SALE, SOLD, ASSIGNED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
SAID ACT OR LAWS OR AN OPINION OF COUNSEL
SATISFACTORY TO XXXXXXXXXXXX.XXX, INC. THAT SUCH
REGISTRATION IS NOT REQUIRED.
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(e) Lock-up. If, prior to February 11, 2002, you enter into an
agreement with an underwriter (the "Underwriter") providing
for a public offering of shares of your Common Stock for sale
pursuant to a registration statement (the "Registration
Statement") filed pursuant to the 1933 Act, I agree that I
will not sell any of the Securities for a 12 month period
following the date the Registration Statement becomes
effective under the Act (the "Lock Up Period") without the
consent of the Underwriter. Until the expiration of the Lock
Up Period, I will not assign the Securities I acquire pursuant
to this transaction unless the assignee enters into a written
agreement with the Underwriter acknowledging to be bound by
these Lock-up provisions, in the event a firm commitment has
been obtained from the Underwriter.
(f) Preemptive Rights. I understand that there are no preemptive
rights to purchase additional Units.
(4) Representations and Warranties. I represent and warrant to the Company
(and understand that you are relying upon the accuracy and completeness
of such representations and warranties in connection with the
availability of an exemption for the offer and sale of the shares from
the registration requirements of applicable federal and state
securities laws) that:
(a) I am a business entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of my
formation with full power and authority to acquire and hold
the Securities. A am not an affiliate of yours, nor is any
controlling person of mine a controlling person or affiliate
with respect to you (as that term is defined in Rule 501(b) of
Regulation D) promulgated under the Act.
(b) I am not a resident of the United States of America or any of
its territories or protectorates, nor am I acquiring the
Securities for the benefit of any resident of the United
States.
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(c) I am an "accredited investor" as described by the
standard definitions common in the securities industry in
North America and as such I am subject to a greater personal
responsibility with respect to the understanding and
undertaking of the investment in the Shares.
(d) I have been furnished and have carefully read the SEC
Documents and other corporate documents relating the Company.
Your representatives have answered all inquiries that I have
made of them concerning you, or any other matters relating to
your formation and operation and the offering and sale of the
Units and any other matter described in SEC Documents or the
other corporate documents. I am not subscribing for the Units
as a result of or subsequent to any advertisement, article,
notice or other communication published in any newspaper,
magazine or similar media or broadcast over television or
radio or presented at any seminar or meeting.
(e) That I have adequate means of providing for my current needs
and possible future contingencies and have no need, and
anticipate no need in the foreseeable future, to sell the
Units for which I subscribe. I am able to bear the economic
risks of this investment and, consequently, without limiting
the generality of the foregoing, I am able to hold the Units
for an indefinite period of time and have sufficient net worth
to sustain a loss of my entire investment in you in the event
such loss should occur.
(f) That I consider this investment a suitable investment for me,
even though the Securities are speculative investments the
involve a high degree of risk and may never have any value.
(g) That I have had prior experience in financial matters and
speculative investments.
(h) I have been advised to consult my own attorney, certified
public accountant and any other investment professional whose
opinion I may rely upon concerning the investment. I
understand that you do not assume any responsibility for the
tax consequences to me of any investment in you.
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(i) I agree that you shall have the right to place stop transfer
notations on your books and records and to issue stop transfer
instructions to your transfer agent to bar the transfer of the
Units and the underlying securities except in accordance with
the 1933 Act and the rules and regulations promulgated
thereunder and the other restrictions on transferability
contained therein and in the Units and the underlying
securities.
(j) Except as otherwise indicated herein, I am the sole party in
interest as to my investment in you, and am acquiring the
Units solely for investment for my own account and have no
present agreement, understanding or arrangement to subdivide,
sell, assign, transfer or otherwise dispose of all or any part
of the Units subscribed for to any other person.
(5) Accuracy of Information. All information which I have provided to the
Company concerning my financial position and knowledge of financial and
business matters is correct and complete as of the date set forth at
the end hereof, and if there should be any material change in such
information prior to acceptance of this subscription offer by the
Company, I will immediately provide the Company with such information.
(6) Conditions. This subscription shall become binding upon the Company and
me only when accepted, in writing, by the board of Directors of the
issuer.
(7) Governing Jurisdiction. This Agreement shall be construed in accordance
with and governed by the laws of the State of Florida, except as to the
manner in which the subscriber elects to take title to shares in the
Company, which shall be construed in accordance with the State of his
principal residence.
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SIGNATURE PAGE FOR
XXXXXXXXXXXX.XXX, INC.
SUBSCRIPTION AGREEMENT
By executing this signature page, I hereby swear to, adopt and agree to
all terms, conditions, representations, warranties and covenants contained in
the Subscription Agreement of which this signature page is a part.
Number of Units subscribed for: 666,666.
Subscription Amount $One Million Dollars ($1,000,000.00)
EXECUTED on this 12th day of February, 2001.
Consensus Investments Limited
By: /s/ Xxxxx Holder
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Name:
Capacity:
Address (including zip code): Consensus Investments Limited
Attn: Xxxxx Holder
ANS Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxxx and East Street
P.O. Box 4244
Nassau Bahamas
This subscription is accepted this 12th day of February 2001.
NETMAXIMIZER COM INC.
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, CFO