EXHIBIT 10.1
Form of Subscription Agreement with investors in the Offering
MULTIMEDIA TUTORIAL SERVICES, INC.
a Delaware corporation
SERIES "D" UNITS
SUBSCRIPTION AGREEMENT
MULTIMEDIA TUTORIAL SERVICES, INC.
Ladies and Gentlemen:
1. SUBSCRIPTION.
1.1 The undersigned (the "Purchaser"), intending to be legally bound
hereby, subscribes for the number of Units of fraction thereof (set forth on
page 7 hereof) each Unit consisting of one million (1,000,000) shares of
restricted common stock of Multimedia Tutorial Services, Inc. and one Series "D"
Unsecured Convertible Promissory Note (the "Notes") having a face amount of
$100,000, accruing interest at ten percent (10%) PER ANNUM in the form attached
as an Exhibit hereto.
The Units are being issued by Multimedia Tutorial Services, Inc., a Delaware
corporation ("MMTS") for Notes, as set forth in Section 14 hereof, at a purchase
price of $100,000 per Unit. The Notes mature in three years following the date
of purchase under the terms and conditions set forth in the Series "D" Note that
accompanies this agreement.
1.2 The Purchaser shall deliver payment in cash directly to MMTS, in
accordance with the wire instructions provided by MMTS together with completed
copies of all applicable Subscription Documents.
1.3 THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY STATE
SECURITIES LAW OR UNDER THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND ARE
BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE SECURITIES OFFERED HEREBY
HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE NOTED STATES SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THESE ARE SPECULATIVE
SECURITIES.
1.4 The Purchaser acknowledges that the securities are being offered in
connection with an aggregate offering of up to $1,500,000 of Units by MMTS.
1.5 The Purchaser acknowledges that an investment in the Units is
extremely speculative, that there is no assurance that the Purchaser will
recover his investment therein and that the purchaser has relied upon his
independent evaluation of the investment; and not upon any representations of
MMTS, its employees, officers, directors, affiliates, agents or representatives.
1.6 The Purchaser shall have "piggy-back" registration rights with
respect to MMTS Stock issued in connection with the purchase of the Units and
with respect the MMTS Stock issued in connection with the conversion of the
Notes. With respect to the Multimedia common stock underlying the Notes and
issued in connection with the Series "D" Units, Multimedia undertakes to include
such shares in the next registration statement (except for an S 8 or any other
type of registration which would not be available for these shares) filed by the
company, and to use its best efforts to have such registration statement
declared effective at the earliest possible date.
1.7 The Purchaser acknowledges that, in the absence of an effective
registration statement for MMTS, the MMTS Stock issued in connection with the
purchase of the Units and the MMTS Stock into which the Notes may be converted
will be restricted under the Securities Act, and in particular, Rule 144
promulgated thereunder, and that no market sale thereof may be made until the
expiration of one year after the conversion, unless sooner registered.
2. The Purchaser has completed the form of Representations and Warranties of
Purchaser, (Exhibit "C") the terms of which are incorporated hereto by
reference.
3. ACKNOWLEDGMENTS.
The Purchaser is aware that:
3.1 The Purchaser recognizes that investment in MMTS involves certain
risks, including the potential loss by the Purchaser of interest on his
investment herein, and the Purchaser has taken full cognizance of and
understands all of the risk factors related to the purchase of the securities.
The Purchaser recognizes that the information set forth in this Subscription
Agreement does not purport to contain all the information that would be
contained in a registration statement under the Securities Act.
3.2 No federal or state agency has passed upon the securities or made
any finding or determination as to the fairness of this transaction.
3.3 The securities and any component thereof have not been registered
under the Securities Act or any applicable state securities laws by reason of
exemptions from the registration requirements of the Securities Act and such
laws, and may not be sold, pledged, assigned or otherwise disposed of in the
absence of an effective registration statement for the securities and any
component thereof under the Securities Act or unless an exemption from such
registration is available.
3.4 There currently is a very limited market for MMTS's securities.
There can be no assurances that a market for MMTS's securities will be sustained
in the future. Consequently, the Purchaser may never be able to liquidate the
Purchaser's investment and the Purchaser may bear the economic risk of the
Purchaser's investment for an indefinite period of time.
3.5 The certificates for the Notes will bear the following legend to
the effect that: THE NOTE AND THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS
NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, OFFERED OR OTHERWISE
DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR UNLESS EXEMPTION FROM REGISTRATION IS
AVAILABLE.
3.6 MMTS may refuse to register any transfer of the securities not made
in accordance with the Securities Act and the rules and regulations promulgated
thereunder.
4. ACCEPTANCE OF SUBSCRIPTION.
The Purchaser hereby confirms that MMTS has full right in its sole
discretion to accept or reject the subscription of the Purchaser, provided that,
if MMTS decides to reject such subscription, MMTS, as the case may be, must do
so promptly and in writing. In the case of rejection, any cash payments and
copies of all executed Subscription Documents will be promptly returned (without
interest or deduction in the case of cash payments).
5. INDEMNIFICATION.
The Purchaser agrees to indemnify and hold harmless MMTS as well as the
affiliates, officers, directors, partners, attorneys, accountants and affiliates
of any thereof and each other person, if any, who controls any thereof, within
the meaning of Section 15 of the Securities Act, against any and all loss,
liability, claim, damage and expense whatsoever (including, but not limited to,
any and all expenses reasonably incurred in investigating, preparing or
defending against any litigation commenced or threatened or any claim
whatsoever) arising out of or based upon any allegedly false representation or
warranty or breach of or failure by the Purchaser to comply with any covenant or
agreement made by the Purchaser herein or in any other document furnished by the
Purchaser to any of the foregoing in connection with this transaction.
6. IRREVOCABILITY.
The Purchaser hereby acknowledges and agrees, subject to the provisions
of any applicable state securities laws providing for the refund of subscription
amounts submitted by the Purchaser, if applicable, that the subscription
hereunder is irrevocable and that the Purchaser is not entitled to cancel,
terminate or revoke this Subscription Agreement and that this Subscription
Agreement shall survive the death or disability of the Purchaser and shall be
binding upon and inure to the benefit of the Purchaser, and the Purchaser's
respective heirs, executors, administrators, successors, legal representatives
and assigns. If the Purchaser is more than one person, the obligations of the
Purchaser hereunder shall be joint and several, and the agreements,
representations, warranties and acknowledgments herein contained shall be deemed
to be made by and be binding upon each such person and each such person's heirs,
executors, administrators, successors, legal representatives and assigns.
7. MODIFICATION.
Neither this Subscription Agreement nor any provisions hereof shall be
waived, modified, discharged or terminated except by an instrument in writing
signed by the party against whom any such waiver, modification, discharge or
termination is sought.
8. NOTICES.
Any notice, demand or other communication which any party hereto may be
required or may elect to give anyone interested hereunder shall be sufficiently
given if: (a) by overnight mail or deposited, postage prepaid, in a Noted States
mail box, stamped registered or certified mail, return receipt requested, and
addressed, in the case of MMTS, to the address given in the preamble hereof,
and, if to the Purchaser, to the address set forth hereinafter; (b) delivered
personally at such address; or (c) telecopied to MMTS at (000)-000-0000, and
followed by first class mail, to the address given in the preamble hereof, or if
to the Purchaser, at the address and telecopier number set forth on the
signature page of this Subscription Agreement.
9. COUNTERPARTS.
This Subscription Agreement may be executed through the use of separate
signature pages or in any number of counterparts, and each of such counterparts
shall, for all purposes, constitute an agreement binding on all parties,
notwithstanding that all parties are not signatories to the same counterpart.
10. ENTIRE AGREEMENT.
This Subscription Agreement contains the entire agreement of the
parties with respect to the subject matter hereof, and there are no
representations, warranties, covenants or other agreements except as stated or
referred to herein.
11. SEVERABILITY.
Each provision of this Subscription Agreement is intended to be
severable from every other provision and the invalidity or illegality of the
remainder hereof.
12. TRANSFERABILITY; ASSIGNABILITY.
This Subscription Agreement is not transferable or assignable by the
Purchaser.
13. APPLICABLE LAW AND FORUM.
This Subscription Agreement and all rights hereunder shall be governed
by, and interpreted in accordance with the laws of the State of New York. The
federal and state courts of the State of New York shall have sole and exclusive
jurisdiction over any dispute arising from this Offering and this Subscription
Agreement.
14. SUBSCRIPTION INFORMATION.
The Purchaser shall pay for the Units by wire transfer of funds to MMTS
in accordance with its instructions.
If the Units hereby subscribed for are to be owned by more than one
person in any manner, the Purchaser understands and agrees that all of the
co-owners of such Units must sign this Subscription Agreement.
SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned Purchaser does represent and
certify under penalty of perjury that the foregoing statements are true and
correct and that he has (they have) by the following signature(s) executed this
Subscription Agreement this ___________ day of ________________________, 2004,
at __________________________________.
___________________________________ ___________________________________
(City and State) (City and State)
Number of Units (in 1/10 Unit increments) _______________@ $100,000 per Unit
Total Purchase Price ($10,000 increments only) $___________________
Funds Should be Wired in Accordance with Section 14 of this Agreement.
Exact Name(s) in which Ownership of the Units are to be Registered:
________________________________________________________________________________
Address ________________________________________________________________________
City, State Zip Code ___________________________________________________________
Phone Number:___________________________ Fax Number:________________________
E-mail Address__________________________
Investor Joint Investor (if necessary)
-------- -----------------------------
___________________________________ ___________________________________
(Print Name) (Print Name)
___________________________________ ___________________________________
(Federal Tax I.D. Number) (Federal Tax I.D. Number)
___________________________________ ___________________________________
(Signature) (Signature)
___________________________________ ___________________________________
(Title) (Title)
Date: _____________________________ Date ______________________________
ACCEPTANCE FORM TO BE COMPLETED BY MMTS
AND RETURNED TO INVESTOR(S)
Name of Investor(s)________________________ ________________________________
Address_________________________________________________________________________
City_______________________________________ State________________ Zip___________
RECEIVED AND ACCEPTED:
Amount: $__________________ Number of Units: ________
Date: ___________________________
MULTIMEDIA TUTORIAL SERVICES, INC.
By______________________________
Title____________________________
The MMTS Stock and Notes will be sent to the Purchaser by overnight courier to
the address indicated above, unless otherwise instructed.
