EXHIBIT 4.33
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
SUBSCRIPTION AGREEMENT
(COMMON STOCK AND COMMON STOCK PURCHASE WARRANTS)
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME.
The undersigned subscriber ("Subscriber"), intending to be legally
bound, hereby subscribes for and agrees to purchase the number of shares of
common stock, no par value per share (the "Common Stock"), of Integrated
Business Systems and Services, Inc., a South Carolina corporation (the
"Company") as are designated as the "Subscribed Shares" on the signature page
hereof (the "Subscribed Shares"). As payment for Subscriber's subscription for
the Subscribed Shares, Subscriber tenders herewith to the Company in cash or a
check made payable in United States dollars to the order of the Company in the
amount of the subscription price per share set forth on the signature page
hereof multiplied by the total number of Subscribed Shares subscribed as set
forth on the signature page hereof (the "Subscription Amount").
Concurrently with the closing of the sale of the Subscribed Shares
contemplated by this Subscription Agreement, the Company shall grant to
Subscriber a Common Stock purchase warrant (the "Warrant") to purchase from the
Company two and one half shares of Common Stock for each whole dollar of the
Subscription Amount paid hereunder for the Subscribed Shares. The Warrant shall
be exercisable for the two-year period commencing on the date of payment of the
Subscription Amount and at such price per share of Common Stock and under such
terms and conditions as are set forth in and governed by the provisions of the
Stock Purchase Warrant attached as Exhibit A.
In consideration of the matters set forth in the Subscription
Agreement, the parties hereby agree as follows:
1. SUBSCRIBER'S REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Subscriber hereby represents and warrants to the Company, and hereby covenants
and agrees with the Company, as follows:
(a) VOLUNTARY AND INFORMED SUBSCRIPTION. Subscriber has
carefully read this Agreement and, to the extent Subscriber believes necessary,
has discussed with Subscriber's counsel and other professional advisor(s) the
representations, warranties, covenants and agreements which Subscriber makes by
signing this Agreement, and any applicable limitations
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
Subscription Agreement
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upon Subscriber's transfer of the Subscribed Shares and the shares of Common
stock issuable upon exercise of the Warrant (collectively, the "Shares").
Subscriber acknowledges that Subscriber has not relied upon the legal counsel or
accountants for the Company or any selling agent engaged by the Company
regarding the transactions contemplated by this Agreement, and Subscriber has
been advised to engage separate legal counsel and accountants to represent
Subscriber's individual interest and advise Subscriber regarding the structure
of, and risks associated with, such transactions.
(b) AVAILABLE INFORMATION ON THE COMPANY. Subscriber
understands that as a publicly traded company whose common stock is traded in
the United States on the Over-the-Counter Bulletin Board ("OTCBB") administered
by the National Association of Securities Dealers, Inc. under the trading symbol
"IBSSOB", the Company files with the Securities and Exchange Commission (the
"SEC"), and the British Columbia Securities Commission (the "BCSC") various
reports, including quarterly and annual financial statements, annual reports to
shareholders, and proxy statements, and that all of each reports, statements and
information are available to the public, including Subscriber, from the SEC and
directly from the Company. Subscriber may read and copy any reports, statements
or other information that the Company files with the SEC at the SEC's public
reference rooms in Washington, D.C., New York, New York and Chicago, Illinois.
(Subscriber may call the SEC at 0-000-XXX-0000 for further information on the
public reference rooms.) The Company's SEC filings are also available to the
public from commercial documents retrieval services and at the internet web site
maintained by the SEC at "xxxx://xxx.xxx.xxx." Reports, proxy statements and
other information may also be available for inspection at the offices of the
BCSC.
(c) DELIVERY, RECEIPT AND REVIEW OF DOCUMENTS. Subscriber
acknowledges that the Company has delivered to Subscriber, or otherwise made
available for review by Subscriber, within a reasonable time prior to the
execution of this Subscription Agreement a copy of the following: (i) the
Company's proxy statement dated April 30, 2003 prepared in connection with the
Company's 2003 annual meeting of shareholders; (ii) the Company's 2002 Annual
Report to Shareholders, including the Company's Form 10-QSB for the fiscal year
ended December 31, 2002 which includes a description of the Company's operations
and the risk factors associated with an investment in the Company; (iii) the
Company's quarterly report on Form 10-QSB for the quarter ended September 30,
2003 which includes a description of the risk factors associated with an
investment in the Company; and (iv) such of the books and records of the Company
and such other documents as Subscriber (and Subscriber's attorney, accountant
and/or other advisors) deemed pertinent in order for Subscriber to make an
informed investment decision (the documents identified in clauses (i) and (iv)
herein are collectively referred to herein as the "Documents"). Prior to the
execution of this Agreement, Subscriber has carefully reviewed the Documents to
the extent Subscriber (and Subscriber's attorney, accountant and/or other
advisors) deemed pertinent in order for Subscriber to make an informed
investment decision.
(d) RELIANCE ON DOCUMENTS. Subscriber further
acknowledges that Subscriber is entering into this Agreement solely on the basis
of information contained in the Documents and not on the basis of any
information, representation or agreements made by any other person, and that no
represents or warranties of any nature have been made to Subscriber
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
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with respect to the ultimate economic consequences or tax consequences of
Subscriber's investment in the Company. Subscriber acknowledges that any
forecasted financial data which may have been given to Subscriber is for
illustration purposes only and no assurance is given that actual results will
correspond with the results contemplated in any such data.
(e) OPPORTUNITIES FOR ADDITIONAL INFORMATION. Subscriber
acknowledges that Subscriber has had the opportunity to ask questions of and
receive answers from, or obtain additional information from, the executive
officers of the Company concerning the financial and other affairs of the
Company, and to the extent deemed necessary in light of Subscriber's personal
knowledge of the Company's affairs, Subscriber has asked such questions and
received answers to the full satisfaction of Subscriber, and Subscriber desires
to invest in the Company. Subscriber has been advised and acknowledges that no
federal or state agency has made any finding or determination as to the fairness
or merits of an investment in the Company, and that no such agency has made any
recommendation or endorsement whatsoever with respect to such an investment.
(f) NO FEDERAL OR STATE REGISTRATION OF THE SHARES /
LIMITATIONS OF TRANSFERS. Subscriber has been advised and acknowledges that the
issuance of the Shares will not be registered under the Securities Act of 1933,
as amended (the "1933 Act"), in reliance upon the exemption(s) from registration
promulgated thereunder, including Section 4(2) thereunder and Rule 505 of
Regulation D promulgated by the Securities and Exchange Commission (the "SEC").
Subscriber also acknowledges that the issuance of the Shares will not be
registered under the securities laws of any state. Consequently, Subscriber
agrees that the Shares cannot be resold unless they are regulated under the 1933
Act and applicable state securities laws, or unless an exemption from such
registration requirements is available. Subscriber has been advised and
acknowledges that although the Company may hereafter register offers and sales
of its securities under the 1933 Act, the Company is under no obligation to take
any action necessary in order to register any Shares or make available any
exemption for the transfer of the Shares without registration.
(g) LEGENDS ON STOCK CERTIFICATES. Subscriber has been
advised and agrees that there will be placed on the certificates representing
the Shares, or any substitution(s) thereof, a legend stating in substance the
following (and including any restrictions or conditions that may be required by
any applicable state law), and Subscriber has been advised and further agrees
that the Company will refuse to permit the transfer of the Shares out of
Subscriber's name in the absence of compliance with the terms of such legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under any state securities laws, and except as provided below,
such securities may not be sold, pledged, transferred,
assigned or otherwise disposed of except in accordance with
such Act and the rules and regulations thereunder and in
accordance with applicable state securities laws. On and after
December 1, 2004 and prior to December 1, 2005, the
corporation will allow transfer of such securities upon
receipt of evidence satisfactory to the corporation that such
transfer complies with the provisions of Rule 144
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
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under the Act. Thereafter, in the absence of knowledge by the
corporation that such transfer would violate applicable
securities laws, the corporation will allow transfer of such
securities without qualification or restriction.
The corporation is authorized to issue shares of both common
and preferred stock. The corporation will furnish without
charge to each shareholder, on written request to the
corporation at its principal place of business or registered
office, a full statement of the powers, designations,
preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such
preferences and/or rights.
(h) NO TRADING MARKET FOR THE SHARES / HIGH RISK
INVESTMENT. Subscriber confirms that Subscriber has no need for liquidity in
Subscriber's investment in the Company, and Subscriber understands that
Subscriber may not be able to liquidate this investment in an emergency.
Subscriber has been advised and acknowledges that there is only a limited public
trading market for the Shares on the OTCBB. Subscriber is aware that
Subscriber's investment in the Company is speculative and involves a high degree
of risk of loss arising from, among other things, substantial market,
operational, competitive and other risks described in the Documents. Having made
Subscriber's own evaluation of the risks associated with this investment,
Subscriber has been advised and Subscriber is aware that Subscriber must bear
the economic risks of a purchase of the Shares, including the risk of the total
loss of such investment, indefinitely. Subscriber acknowledges that Subscriber's
overall commitment to investments of the kind represented by an investment in
the Company (including this investment) is reasonable in relation to
Subscriber's net worth.
(i) ASSOCIATED INVESTOR STATUS. Subscriber is an
"accredited investor" as that term is defined in Rule 501 of Regulation D
promulgated by the SEC under the 1933 Act. For this purpose, Subscriber
understands that an "accredited investor" includes:
(A) any INDIVIDUAL who:
(1) has a net worth (individually or jointly
with spouse) in excess of $1 million; or
(2) has had an individual income in excess of
$200,000 (or joint income with spouse in
excess of $300,000) in each of the two most
recent years and who reasonably expects the
same income level for the current year; or
(3) is an executive officer or director of the
Company who was not appointed to such
position for the purpose of qualifying the
Subscriber as an accredited investor; or
(B) any ENTITY in which all of the equity owners or
partners are "accredited investors;" or
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(C) any corporation or partnership with total assets in
excess of $5,000,000 that was not formed for the
specific purpose of purchasing the securities
subscribed hereunder.
(j) SUBSCRIBER'S AGE AND STATE OF RESIDENCE. If
Subscriber is an individual, Subscriber is eighteen (18) years of age or older.
Subscriber's current address is (and if Subscriber is an entity, Subscriber's
state of incorporation or organization are) as set forth on the signature page
hereof. If Subscriber is an entity which meets the classification set forth
under Section 1(i)(B) above but does not satisfy Section 1(i)(C) above, each of
Subscriber's equity owners and/or partners has the same state of residence as
the Subscriber's state of organization, and none of Subscriber's equity owners
and/or partners has any present intention of moving from such state of
residency.
(k) SOPHISTICATED INVESTOR STATUS. Subscriber considers
himself/herself/itself to be a sophisticated investor in companies similarly
situated to the Company, and Subscriber has substantial knowledge and experience
in financial and business matters (including knowledge of finance, securities
and investments, generally, and experience and skill to investments based on
actual participation) such that Subscriber is capable of evaluating the merits
and risks of the prospective investment in the Company.
(l) PURCHASING SOLELY FOR INVESTMENT. Subscriber agrees
that Subscriber shall purchase the Shares (A) solely for Subscriber's own
account and not as nominee for, representative of, or otherwise on behalf of any
other person, and (B) with the intention of holding such securities for
investment, with no present intention of participating, directly or indirectly,
in a subsequent public distribution of such securities unless registered under
the 1933 Act and applicable state securities laws, or unless an exemption from
such registration requirements is available. Subscriber shall not make any sale,
transfer or other disposition of the Shares in violation of state or federal
law.
(m) NO GENERAL SOLICITATION. Subscriber acknowledges that
the Shares have not been offered to Subscriber by means of any form of general
or public solicitation or general advertising, or publicly disseminated
advertisements or sales literature, including (A) any advertisement, article,
notice or other communication published in any newspaper, magazine, or similar
media, or broadcast over television or radio, or (B) any seminar or meeting to
which Subscriber was invited by any of the foregoing means of communications.
(n) NO COMMISSIONS OR SIMILAR FEES. In connection with
the purchase of the Shares by Subscriber, Subscriber has not and will not pay,
and has no knowledge of the payment of, any commission or other direct or
indirect remuneration to any person or entity for soliciting or otherwise
coordinating the purchase of such securities, except to such persons or entities
as are duly licensed and/or registered to engage in securities offering and
selling activities (or are exempt from such licensing and/or registration
requirements) under applicable federal laws and the laws of the state(s) in
which such activities have taken place in connection with the transaction
contemplated by this Agreement.
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
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(o) FUTURE SALES AND DILUTION. Subscriber is aware that
the Company may offer and sell additional shares of preferred stock or Common
Stock in the future, thereby diluting Subscriber's percentage equity ownership
of the Company.
(p) ENTITY SUBSCRIBERS. If Subscriber is a corporation or
partnership, Subscriber is duly organized, validly existing, and in good
standing under the laws of its state of organization, and has duly and validly
taken all corporate, shareholder, partnership (as applicable) actions necessary
to approve and authorize the execution of this Agreement, and to consummate the
transactions contemplated hereby. Each of the representatives of Subscriber
signing this Agreement has full power and authority to execute this Agreement in
the indicated capacity and to consummate the transactions contemplated hereby.
(q) RELIANCE BY THE COMPANY. Subscriber understands and
agrees that the Company, and all current and future shareholders of the Company
are relying on the agreements and representations contained herein. Subscriber
understands fully the meaning and legal consequences of the provisions herein,
and agrees to indemnify and hold harmless the Company, and each other person, if
any, subject to liability because of such person's connection with the Company,
against all actions, claims, losses, damages and liabilities arising out of or
based upon any false representation or warranty herein, or any breach of the
undersigned of any provision hereof, and to reimburse the Company and each such
other person for any legal and other expenses incurred by the Company and each
such other person in connection with investigating, defending, and, if
appropriate, settling any action, claim, loss, damage or liability.
2. MISCELLANEOUS. Each of Subscriber and the Company understands
and agrees that (a) this Agreement is binding upon and inure to the benefit of
the parties hereto and their successors/heirs and permitted assigns; (b) this
Agreement may not be assigned or transferred by Subscriber except upon the prior
written consent of the Company; (c) this Agreement will be governed and
construed in accordance with the laws of the State of South Carolina; and (d)
when executed and delivered, this Agreement shall constitute the valid and
binding obligation of Subscriber, enforceable in accordance with its terms and
conditions, except as enforcement may be limited by applicable bankruptcy,
insolvency or similar laws effecting creditors' rights generally and by
principles of equity.
3. POWERS AND AUTHORITY. Each of Subscriber and the Company
hereby represents and warrants to the other that such party has full power and
authority to execute, deliver and perform this Agreement and such party has
obtained the requisite corporate, governmental, and third party approvals and
consents necessary to enter into and perform this Agreement.
4. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing such counterpart.
5. SHAREHOLDERS AGREEMENT. Subscriber understands and agrees that
as a precondition to the Company's transfer of the Shares to Subscriber as
contemplated hereunder, Subscriber shall have executed and delivered to the
Company a Shareholders Agreement
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
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(provided by the Company) placing substantial restrictions on Subscriber's
ability to transfer the Shares.
6. ENTIRE AGREEMENT. This Subscription Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior written or oral agreements and representations between
the parties with respect thereto.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
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IN WITNESS WHEREOF, Subscriber has executed this Agreement as of the date set
forth opposite Subscriber's signature below.
Number of Subscribed Shares: Name of Subscriber:
500,000 Liberty Union Life Assurance Corporation
-------------------------------------- -------------------------------------------
Subscription Price per Share:**$0.20** Please PRINT or TYPE exact name(s) in which
undersigned desires Shares to be registered
Aggregate Subscription Price:
(Subscribed Shares x $0.20)
_______________________________________
Signature of Subscriber*
$100,000.00
---------------------------------
IF SUBSCRIBER IS AN ENTITY:
By: /s/ Xxxxx Xxxxx
----------------------------------
(signature of authorized representative
Print Name: Xxxxx Xxxxx
Title or Office: President
00-0000000 Corporate
---------------------------------- ------------------------------------------
Social Security or Federal Taxpayer Please indicate form of ownership the undersigned
Identification Number of Subscriber the Shares desires for (individual, joint tenant with
right of survivorship, tenants in common)
30775 Barrington
--------------------------------------
Subscriber's Street Address
(P.O. Xxx Xxx Xxxxxxxxxx)
Xxxxxxx Xxx., XX 00000
------------------------------------
City/State/Zip Code
Area Code and Telephone Number
----------------------------------------
---------------------------------
* In case of joint tenants, each joint owner must sign.
The terms and conditions of the within and the foregoing Subscription and
Funding Commitment Agreement are hereby accepted and agreed to by and on behalf
of Integrated Business Systems and Services, Inc. as an immediate subscription
for 250,000 Shares of Common Stock.
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Its: Chief Executive Officer
Date: December 4, 2003
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
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