EXHIBIT 4.3
EXHIBIT A
_____________________________
Name of Investor
SUBSCRIPTION AGREEMENT
AssureTec Holdings Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Gentlemen:
The undersigned hereby subscribes to the purchase of one or more Common
Shares (the "Common Shares") issued by AssureTec Holdings Inc., a Delaware C
corporation (the "Company") in accordance with the terms and conditions of this
Subscription Agreement.
It is understood that, upon the sale by the Company to the undersigned of
the Common Shares, the undersigned will receive a copy of this Subscription
Agreement executed by an officer on behalf of the Company.
1. Subscription. Subject to the terms and conditions hereof, the
undersigned hereby irrevocably subscribes for and agrees to purchase ___ Common
Share(s) in the original principal amount of ___ Dollars ($ ___ ) and tenders
herewith a check in the amount of _____________________________ Dollars
($_________) payable to the order of AssureTec Holdings.
2. Acceptance of Subscription. The undersigned understands and agrees that
this subscription is made subject to the unconditional right of the Company to
reject any subscription, in whole or in part, for any reason whatsoever.
1
3. Payment of Subscription. The undersigned understands that the total
amount subscribed will be paid to the company through the account.
4. Representation and Warranties of the Undersigned. The undersigned
understands and acknowledges that the Common Shares are being offered and sold
under one or more of the exemptions from registration provided for in Section
3(b), 4(2) and 4(6) of the Securities Act of 1933, as amended (the "Act"),
including Regulation D promulgated thereunder, that, other than the materials
attached to this Subscription Agreement, he is purchasing said Common Shares
without being offered or furnished any additional offering literature,
prospectus or other material, financial or otherwise, that this transaction has
not been scrutinized by the United States Securities and Exchange Commission or
by any regulatory authority charged with the administration of the securities
laws of any state, that all documents, records and books, pertaining to this
investment have been made available to the undersigned and his representatives,
including his attorney, his accountant and/or his representative(s), if any, 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. The undersigned hereby further represents and
warrants as follows:
(a) the undersigned confirms that he understands and has fully
considered, for purposes of this investment, the risks of an investment in the
Common Shares and understands that: (i) this investment is suitable only for an
investor who is able to bear the economic consequences of losing his entire
investment, (ii) the purchase of the Common Shares is a speculative investment
which involves a high degree of risk of loss by the undersigned of his entire
investment, and (iii) that there will be no public market for the Common Shares
and accordingly, it may not be possible for him to liquidate his investment in
the Common Shares in case of an emergency;
(b) the undersigned acknowledges that the materials reviewed contain
the views of the management of the Company, and that the analysis of the market
and of the Company's strategy and competitive position contained therein
represent subjective assessments about which reasonable persons could disagree
and there can be no assurance that the actual results of operations of the
Company will be as contemplated by the materials;
(c) the undersigned confirms that he is (i) an "Accredited Investor"
as the term is defined pursuant to Regulation D promulgated under the Act; (ii)
able to bear the economic risk of this investment, (iii) able to hold the Common
Shares for the period of time set forth herein, and (iv) presently able to
afford a complete loss of his investment; and represents that he has sufficient
liquid assets so that the illiquidity associated with this investment will not
cause any undue financial difficulties or affect the undersigned's ability to
provide for his current needs and possible financial contingencies, and that his
commitment to all speculative investments (including this one if his
subscription is accepted by the Company) is reasonable in relation to his net
worth and annual income;
2
(d) the undersigned has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of an
investment in the Common Shares and of making an informed investment decision;
(e) the undersigned acknowledges that he has been provided and has
read and understands the Amended and Restated Private Placement Offering dated
September 15, 2005 ("the Offering Memorandum") and understands the
capitalization table in Section XIII of the Offering Memorandum describes the
capitalization of the Company prior to the completion of this offering.
(f) the undersigned has had the opportunity to discuss with his
representatives, including his attorney and/or his accountant, if any, the tax
consequences of his investment in the Common Shares;
(g) in making his decision to purchase the Common Shares, he has
relied solely upon the materials reviewed and that he and such representatives
have been given the opportunity to ask questions of, and to receive answers
from, management and other persons acting on behalf of the Company concerning
the Company and the terms and conditions of this offering, and to obtain any
additional information, to the extent such persons possess such information or
can acquire it without unreasonable effort or expense, necessary to verify the
accuracy of the information provided;
(h) the Common Shares are being acquired by the undersigned solely for
his own personal account, for investment purposes only, and not with a view to,
or in connection with, any resale or distribution thereof; the undersigned has
no contract, undertaking, understanding, agreement or arrangement, formal or
informal, with any person to sell, transfer or pledge to any person the Common
Shares for which he hereby subscribes, any part thereof, any interest therein or
any rights thereto; the undersigned has no present plans to enter into any such
contract, undertaking, agreement or arrangement; and he understands the legal
consequences of the foregoing representations and warranties to mean that he
must bear the economic risk of the investment for an indefinite period of time
because the Common Shares have not been registered under the Act and, therefore,
cannot be sold unless they are subsequently registered under the Act (which the
Company is not obligated, and has no intention, to do) or unless an exemption
from such registration is available; the Common Shares will be considered
"Restricted Securities" for purposes of Rule 144 promulgated under the Act;
(i) the undersigned understands that no Federal or state agency has
passed on or made any recommendation or endorsement of the Common Shares and
that the Company is relying on the truth and accuracy of the representations,
declarations and warranties herein made by undersigned in offering the Common
Shares for sale to the undersigned without having first registered the Common
Shares under the Act;
3
(j) the undersigned represents that he has not and will not distribute
the materials to any other person or party; and that he has not used the
materials for any purposes other than to evaluate the merits of an investment in
the Common Shares of the Company;
(k) the undersigned consents to the placement of a legend on the
Common Shares as required by applicable securities laws, including legends in
form substantially as follows:
THIS COMMON SHARES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY
STATE SECURITIES LAW, AND NO INTEREST THEREIN MAY BE SOLD,
DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE
TRANSFERRED AND THIS COMMON SHARES MAY NOT BE CONVERTED
UNLESS: (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS
EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAW OR (2) THE COMPANY RECEIVES AN OPINION OF LEGAL COUNSEL
TO THE COMPANY OR OTHER COUNSEL TO THE HOLDER OF THESE
SECURITIES (CONCURRED IN BY LEGAL COUNSEL TO THE COMPANY),
STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS. BY
ACQUIRING THIS COMMON SHARES, THE HOLDER REPRESENTS THAT THE
HOLDER HAS ACQUIRED SUCH COMMON SHARES FOR INVESTMENT AND
THAT THE HOLDER WILL NOT SELL OR OTHERWISE DISPOSE OF THIS
COMMON SHARES WITHOUT REGISTRATION OR OTHER COMPLIANCE WITH
THE ACT AND THE RULES AND REGULATIONS THEREUNDER.
(l) New Hampshire residents acknowledge they have read and understood
the following:
4
NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A
LICENSE HAS BEEN FILED WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT
THAT A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN
THE STATE OF NEW HAMPSHIRE CONSTITIUTES A FINDING BY THE SECREATRY OF
STATE THAT ANY DOCUMENT FILED UNDER RSA 421-B IS TRUE, COMPLETE AND
NOT MISLEADING. NEITHER ANY SUCH FACT NOR THE FACT THAT AN EXEMPTION
OR EXCEPTION IS AVAILABLE FOR A SECURITY OR A TRANSACTION MEANS THAT
THE SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE MERITS OR
QUALIFACATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON,
SECURITY, OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE MADE,
TO ANY PROSPECTIVE PURCHASER, CUSTOMER, OR CLIENT ANY REPRESENTATION
INCONSISTENT WITH THE PROVISIONS OF THIS PARAGRAPH.
The foregoing representations and warranties are made by the
undersigned with the intent that they may be relied upon in determining his
suitability as an investor in the Company.
5. Transferability. The undersigned may transfer or assign the Common
Shares acquired in accordance with all applicable laws.
6. Revocation. The undersigned may revoke this agreement prior to the close
of this transaction.
7. No Waiver. The undersigned does not waive any rights granted to him
under Federal or state securities laws.
8. Acknowledgments of the Undersigned. The undersigned acknowledges that
there have been no guarantees or warranties made to him by the Company, its
agents or employees, or by other person, expressly or implication, of any nature
or kind.
9. All notices or other communications given or made hereunder shall be in
writing and shall be delivered or mailed by registered or certified mail, return
receipt requested, postage prepaid, to the undersigned at the address set forth
below or to the Company at the address set forth above.
10. This Agreement shall be governed by and construed in accordance with
laws of the State of New Hampshire.
11. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and may be amended only be a writing
executed by the parties.
5
IN WITNESS WHEREOF, the undersigned has hereby executed this Agreement this
day of , 2005.
------------------------------ ----------------------------
Subscriber Signature SS Number
------------------------------ ----------------------------
Name of Subscriber (Please Street Address
print or type)
---------------------------
City or Town & State & Zip
------------------------------ ----------------------------
Co- subscriber Signature SS Number
------------------------------ ----------------------------
Name of Co-subscriber (Please Street Address
print or type)
----------------------------
City or Town & State & Zip
AssureTec Holdings, Inc. hereby accepts the foregoing subscription subject
to the terms and conditions hereof as of the _____ day of ______________ , 2006.
AssureTec Holdings Inc.
By:
----------------------------------------
DULY AUTHORIZED
6
SCHEDULE A TO SUBSCRIPTION AGREEMENT
WARRANT TO PURCHASE SHARES OF COMMON STOCK OF ASSURETEC HOLDINGS INC.
This is to Certify that, for value received, ___________________ (the
"Holder"), is entitled to purchase, subject to the provisions of this Warrant,
from AssureTec Holdings Inc., a New Hampshire corporation (the "Company"), at
any time on or after date hereof, and not later than 5:00 p.m. EST, two years
after __________________________ or one year following the effective date of an
IPO, whichever occurs first, up to six hundred twenty five thousand shares of
the Common Stock, US$.001 par value, of the Company (the "Common Stock") at a
purchase price per share equal to US$6 at the rate of one share for each TWO
SHARES OF Common Stock purchased under this Offering (______________ option
shares), subject to adjustment as to the number of shares and purchase price as
hereinafter set forth. The shares of the Company's Common Stock issuable upon
the exercise of this Warrant are called herein the "Warrant Stock." The price
per share of the Warrant Stock as adjusted from time to time as hereinafter set
forth is sometimes referred to as the "Exercise Price." The Holder hereof may
exercise this Warrant as to all or any portion of the shares of the Warrant
Stock which such Holder shall have the right to acquire hereunder. This Warrant
is the Warrant referred to in that certain Subscription Agreement of even date
herewith (the "Subscription Agreement") between the Company and the Holder.
(a) Exercise of Warrant. This Warrant may be exercised by presentation and
surrender hereof to the Company with the Exercise Notice attached hereto as
Annex A. The Warrant shall be deemed to have been exercised when (i) the Company
has received a completed Exercise Notice, and (ii) the Company has received
payment in the amount of the applicable Exercise Price, notwithstanding that
certificates representing such shares of Common Stock shall not then be actually
delivered to the Holder. If the stock transfer books of the Company shall be
closed on the date of receipt of the Exercise Notice and the Exercise Price as
aforesaid, the Holder shall be deemed to be the holder of such shares of Common
Stock on the next succeeding day on which the stock transfer books of the
Company shall be opened. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation, execute and
deliver a new Warrant evidencing the right of the Holder to purchase the balance
of the shares purchasable hereunder. In the event this Warrant shall not be
exercised on or before two years after the date of issue or on or before one
year following the effective date of an IPO whichever is sooner, this Warrant
shall become void and all rights hereunder shall cease.
(1) Method of Payment. Holder may pay the applicable Exercise Price by
cash, check or cash equivalent.
(2) Expenses of Issuance. The Company shall issue the Shares upon
exercise of this Warrant without charge to Holder for any issuance tax or other
cost incurred by the Company in connection with such exercise and the related
issuance of the Shares. Each of the Shares shall, upon payment of the Exercise
Price therefor, be fully paid and nonassessable and free from all liens and
charges with respect to the issuance thereof.
(3) Withholding Taxes. Holder shall satisfy any federal, state, local
or foreign withholding tax obligations arising from the exercise of the Warrant
or the subsequent disposition of the Shares.
(b) Reservation of Shares; Stock Fully Paid. The Company agrees that at all
times there shall be authorized and reserved for issuance upon exercise of this
Warrant such number of shares of its Common Stock as shall be required for
issuance or delivery upon exercise of this Warrant. All shares that may be
issued upon exercise hereof, will upon issuance, be validly issued, fully paid
and non-assessable.
(c) Fractional Shares. This Warrant shall be exercisable in such manner as
not to require the issuance of fractional shares or scrip representing
fractional shares. If, as a result of adjustment in the Exercise Price or the
number of shares of Common Stock to be received upon exercise of this Warrant
fractional shares would be issuable, no such fractional shares shall be issued.
In lieu thereof the Company shall pay the Holder an amount in cash equal to such
fraction multiplied by the current market value of such fractional share. The
current value shall be an amount, not less than twice book value, determined in
such reasonable manner as may be prescribed by the Board of Directors of the
Company, such determination to be final and binding on the Holder.
(d) Exchange or Assignment of Warrant. Holder may not, directly or
indirectly, voluntarily or involuntarily, sell, assign, transfer, pledge,
hypothecate, encumber or otherwise dispose of, voluntarily or involuntarily,
directly or indirectly (each, a "Transfer") this Warrant, except that Holder may
transfer the Warrant to Holder's spouse and direct descendants of Holder, and
the heirs, executors, administrators, testamentary trustees, legatees or
beneficiaries of Holder's estate upon death (each, a "Permitted Transferee");
provided, however, that (x) any such Permitted Transferee shall have agreed in
writing to be bound by the terms of this Agreement with respect to the Shares
and (y) any transfer to a Permitted Transferee shall not be in violation of
applicable federal or state securities laws.
(e) Rights of the Holder; Limitation on Liability. The Holder shall not,
prior to exercise of this Warrant, by virtue hereof, be entitled to any rights
of a shareholder in the Company, either at law or equity, and the rights of the
Holder are limited to those expressed in the Warrant. No provision hereof, in
absence of an affirmative action by the Holder to purchase the Warrant Stock,
and no enumeration herein of rights or privileges by the Holder, shall give rise
to any liability of the Holder for the Exercise Price of the Warrant Stock.
(f) Adjustment of Exercise Rights. The Exercise Price or the number of
shares of Common Stock to be received upon the exercise of this Warrant, or both
shall be subject to adjustment from time to time as follows:
(l) Dividends. In case any additional shares of Common Stock or any
obligation or stock convertible into or exchangeable for shares of Common Stock
(such convertible or exchangeable obligations or stock being hereinafter called
"Convertible Securities") shall be issued as a dividend on any class of stock of
the Company, such shares or Convertible Securities shall be deemed to have been
issued without consideration, on the day next succeeding the date for the
determination of stockholders' entitled to such dividend; and any issuance of
any such additional shares of Common Stock as a dividend on Common Stock shall
be treated as a subdivision as a whole of the number of shares of Common Stock
then outstanding into a greater number of shares, and the Exercise Price shall
be adjusted under Subsection (2) of this Section (f) and not under this
Subsection (l). If at any time the Company shall declare a cash dividend on its
Common Stock and shall, contemporaneously therewith, give to the holders of
Common Stock the option to purchase additional Common Stock at a price which
shall net the Company in the aggregate substantially the amount, or less than
the amount, of such cash dividend, the aggregate number of shares of Common
Stock actually issued and issuable pursuant to the exercise of such option shall
be deemed to have been issued as a stock dividend on the date of the expiration
of such option.
Anything herein to the contrary notwithstanding, the Company shall not be
required to make any adjustment in the Exercise Price in the case of the
issuance at any time or from time to time of any shares of Common Stock pursuant
to any exercise of this Warrant.
(2) Effect of "Split-ups" and "Split-down" and Certain Dividends. In
case at any time or from time to time the Company shall subdivide as a whole, by
reclassification, by the issuance of a stock dividend on the Common Stock
payable in Common Stock, or otherwise, the number of shares of Common Stock then
outstanding into a greater number of shares of Common Stock, with or without par
value, the Exercise Price then in effect shall be reduced proportionately, and
the number of shares of Warrant Stock then exercisable hereunder shall be
increased proportionately. In case at any time or from time to time the Company
shall consolidate as a whole, by reclassification or otherwise, the number of
shares of Common Stock then outstanding into a lesser number of shares of Common
Stock, with or without par value, the Exercise Price then in effect shall be
increased proportionately and the number of shares of Warrant Stock then
exercisable hereunder shall be decreased proportionately.
(3) Statement of Adjusted Exercise Price. Whenever the Exercise Price
is adjusted pursuant to any of the foregoing provisions of this Section (f), the
Company shall forthwith prepare a written statement signed by the President or
the Treasurer of the Company, setting forth the adjusted Exercise Price and any
adjustment in the number of shares purchasable hereunder, determined as provided
in this Section (f), and in reasonable detail the facts requiring such
adjustment. Such statement shall be filed among the permanent records of the
Company, shall be furnished to the Holder of each Warrant upon request, and
shall be open to inspection by the Holders of the Warrants during normal
business hours.
(4) Effect of Merger or Consolidation. In case the Company shall enter
into any consolidation with or merger into any other corporation wherein the
Company is not the surviving corporation, or sell or convey its property as an
entirety or substantially as an entirety and in connection with such
consolidation, merger, sale or conveyance shares of stock or other securities
shall be issuable or deliverable in exchange for the Common Stock of the
Company, the Holder of any Warrant shall thereafter be entitled to purchase
pursuant to such Warrant (in lieu of the number of shares of Common Stock which
such Holder would have been entitled to purchase immediately prior to such
consolidation, merger, sale or conveyance) the shares of stock or other
securities to which such number of shares of Common Stock would have been
entitled at the time of such consolidation, merger sale or conveyance, at an
aggregate Exercise Price equal to that which would have been payable if such
number of shares of Common Stock had been purchased immediately prior thereto.
In case of any such consolidation, merger, sale or conveyance, appropriate
provision (as determined by resolution of the Board of Directors of the Company
with the approval of the Holder) shall be made with respect to the rights and
interests thereafter of the Holders of Warrants, to the end that all the
provisions of the Warrants (including adjustment provisions) shall thereafter be
applicable, as nearly as reasonably practicable, in relation to such stock or
other securities.
(5) Reorganization and Reclassification. In case of any capital
reorganization or any reclassification of the capital stock of the Company
(except as provided in Subsection (2) of this Section (f)); the Holder of any
Warrant shall thereafter be entitled to purchase pursuant to such Warrant (in
lieu of the number of shares of Common Stock which such Holder would have been
entitled to purchase immediately prior to such reorganization or
reclassification) the shares of stock of any class or classes or other
securities or property to which the holder of such number of shares of Common
Stock would have been entitled at the time of such reorganization or
reclassification, at an aggregate Exercise Price equal to that which would have
been payable if such number of shares of Common Stock had been purchased
immediately prior to such reorganization or reclassification, appropriate
provision (as determined by resolution of the Board of Directors of the Company
with the approval of the Holder) shall be made with respect to the rights and
interest thereafter of the Warrants (including adjustment provisions) shall
thereafter be applicable, as nearly as reasonably practicable, in relation to
such stock or other securities or property.
(6) Distributions. In case the Company shall make any distribution of
its assets to holders of its Common Stock as a liquidation or partial
liquidation dividend or by way of return of capital, or other than as a dividend
payable out of earnings or any surplus legally available for dividends under the
laws of the State of New Hampshire, then the Holder of this Warrant who
thereafter exercises the same as herein provided after the date of record for
the determination of those holders of Common Stock entitled to such distribution
of assets, shall be entitled to receive for the purchase price of the shares of
Common Stock stated in this Warrant, in addition to the Shares of Common Stock,
the amount of such assets (or at the option of the Company, a sum equal to the
value thereof at the time of such distribution to holders of Common Stock, as
such value is determined by the Board of Directors of the Company in good
faith), which would have been payable to such Holder had he been the holder of
record of such shares of Common Stock on the record date for the determination
of those entitled to such distribution.
(7) Dissolution or Liquidation. In case the Company shall liquidate or
wind up its affairs, the Holder of this Warrant shall be entitled, upon the
exercise thereof, to receive, in lieu of the shares of Common Stock of the
Company which it would have been entitled to receive, the same kind and amount
of assets as would have been issued, distributed or paid to it upon any such
dissolution, liquidation or winding up with respect to such shares of Common
Stock of the Company, had it been the holder of record of such shares of Common
Stock on the record date for the determination of those entitled to receive any
such liquidating distribution; provided, however, that all rights under this
Warrant shall terminate on a date fixed by the Company, such date to be not
earlier than the date of commencement of proceedings for dissolution,
liquidation or winding up and not later than 30 days after such commencement
date, unless the Holder shall have, prior to such termination date, exercised
this Warrant. Notice of such termination of rights under this Warrant shall be
given to the last registered Holder hereof, as the same shall appear on the
books of the Company, by mail at least 30 days prior to such termination date.
In the event of such notice the Holder may exercise this Warrant prior to the
fifth anniversary hereof.
(g) Limitations on Transfer of Warrant Stock. The Common Stock issuable
pursuant hereto has not been registered under the Act. Accordingly, by
acceptance hereof the Holder agrees that:
(l) It will acquire the Common Stock issuable pursuant hereto to be
held as an investment and that it will not attempt to sell, distribute or
dispose of the same except pursuant to this agreement and:
(a) pursuant to a registration statement filed and rendered
effective under the Act; or
(b) pursuant to a specific exemption from registration under the
Act.
(2) There shall appear on the certificate or certificates evidencing
any Common Stock issued pursuant hereto a legend as follows:
THIS SECURITY HAS NOT BEEN REGISTERED PURSUANT TO THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAW. NEITHER
THIS SECURITY NOR ANY PORTION HEREOF OR INTEREST HEREIN MAY
BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER SAID ACT AND
ANY APPLICABLE STATE SECURITIES LAW, OR UNLESS AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE AND THE CORPORATION
SHALL HAVE RECEIVED, AT THE EXPENSE OF THE HOLDER HEREOF,
EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO THE
CORPORATION (WHICH MAY INCLUDE, AMONG OTHER THINGS, AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION).
(h) Company shall cover all shares which may be issued to Investor under
the terms of this Warrant in the Registration Statement filed with the SEC under
the terms of the Offering pursuant to which this warrant is being granted.
(i) Notices. All notices, payments, requests and demands and other
communications required or permitted under this Warrant shall be deemed to have
been duly given, delivered and made if in writing and if served either by
personal delivery to the party for whom it is intended or by being deposited,
postage prepaid, certified or registered mail return receipt requested to the
address shown below or such other address as may be designated in writing
hereafter by such party:
If to the Company:
AssureTec Holdings Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
If to the Holder:
----------------------------
----------------------------
----------------------------
With a copy to:
--------------------
--------------------
--------------------
--------------------
(i) Governing Law. This Warrant shall be construed and enforced in
accordance with and governed by the laws of New Hampshire.
(j) Controversy. In the event of any controversy, claim or dispute between
the parties hereto, arising out of or relating to this Warrant, the prevailing
party shall be entitled to recover from the non-prevailing party reasonable
expenses, attorneys' fees, and costs.
(k) Further Assurances. The parties agree to execute, acknowledge and
deliver any and all such other documents and to take any and all such of the
action as may, in the reasonable opinion of either of the parties hereto be
necessary or convenient to efficiently carry out any or all of the purposes of
this Warrant.
(l) Severability. Each and all provisions of this Warrant deemed to be
prohibited by law or otherwise held invalid shall be ineffective only to the
extent of such prohibition or invalidity and shall not invalidate or otherwise
render ineffective any or all of the remaining provisions of this Warrant.
(m) Parties in Interest. Assignment. The Company may assign any and all of
its rights under this Agreement to its successors, and this Agreement shall
inure to the benefit of, and be binding on, the successors of the Company.
Subject to the restrictions on transfer herein set forth, this Agreement shall
be binding upon the Holder and his heirs, executors, administrators, successors
and assigns.
(n) Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supercedes in its
entirety all prior undertakings and agreements of the Company and the Holder
with respect to the subject matter hereof, and may not be modified adversely to
the Holder interest except by means of a writing signed by the Company and the
Holder.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be signed by
its Secretary Treasurer, and attested by its President as of the ____ day of
____________, 2006.
ATTEST: ASSURETEC HOLDINGS INC.
---------------------------- ----------------------------
R. Xxxxx Xxxxxx
President & CEO Secretary Treasurer
ANNEX A
EXERCISE NOTICE
---------------
To: Assuretec Systems Inc.
Dated:
The undersigned, pursuant to the provisions set forth in the Stock Warrant
Agreement dated effective as of _____________, 200_ (the "Agreement"), hereby
exercises his right to purchase __________ of the Shares at the Exercise Price
of $6 as provided in the Agreement, and makes payment herewith in full therefor,
either in the form of cash, check or cash equivalent at the price per share
provided in the Agreement.
Signature _____________________
ANNEX B
Stock Legend
---------------------------------------
THIS SECURITY HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY PORTION HEREOF OR
INTEREST HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAW, OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE
AND THE CORPORATION SHALL HAVE RECEIVED, AT THE EXPENSE OF THE HOLDER HEREOF,
EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO THE CORPORATION (WHICH MAY
INCLUDE, AMONG OTHER THINGS, AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION)
ANNEX C
ADDITIONAL TERMS AND AGREEMENTS
The following terms and agreements by and between Dr. R. Xxxxx Xxxxxx, in his
capacity as CEO of AssureTec Holdings, Inc. and investor are hereby agreed to as
follows:
1. With regard to registration rights of the shares subject to this
subscription agreement, the Company will bear all cost related to
their being declared effective at a time to be determined by the
Company but only with the approval of the managing underwriter of the
IPO and only as part of an already ongoing registration; and
2. with regard to dividends, the shares underlying this subscription
agreement will have the same dividend rights as all other common
shares of AssureTec Holdings, Inc. and therefore will have the right
to receive dividends when so declared by AssureTec Holdings, Inc.; and
3. Company agrees that for the period of time from the execution of this
subscription agreement until the public offering of shares by the
Company it will not cause its shares to be sold to other investors at
a price less than the price of the shares sold subject to this
subscription agreement; however, should Company agree to sell shares
at a price that is below that price contained in this subscription
agreement, Company agrees to re-price the shares sold under this
subscription agreement to the price of the shares sold that were less
than the share price of these shares and accordingly issue to the
shareholder sufficient additional shares so that their holdings are at
the equivalent pricing of the shares sold at the lower price. Nothing
in this provision shall be interpreted to affect the sale of Preferred
Shares to investors convertible into common shares under a Private
Placement of such shares offered during the period of April, 2004
through September 2005, prior to accepting subscriptions under this
current offering of common stock with warrants.
