Attached files
| file | filename |
|---|---|
| S-1 - S-1 - ContinuityX Solutions, Inc. | v192273_s1.htm |
| EX-5.1 - EX-5.1 - ContinuityX Solutions, Inc. | v192273_ex5-1.htm |
| EX-3.1 - EX-3.1 - ContinuityX Solutions, Inc. | v192273_ex3-1.htm |
| EX-4.1 - EX-4.1 - ContinuityX Solutions, Inc. | v192273_ex4-1.htm |
| EX-3.2 - EX-3.2 - ContinuityX Solutions, Inc. | v192273_ex3-2.htm |
| EX-23.1 - EX-23.1 - ContinuityX Solutions, Inc. | v192273_ex23-1.htm |
SUBSCRIPTION
AGREEMENT
EDUtoons,
Inc.
Shares of
Common Stock, par value $0.001 per share
Instructions:
I.
Items to be delivered by all
Investors:
|
|
a.
|
Two
(2) completed and executed Subscription
Agreements.
|
|
|
b.
|
Payment
in the amount of subscription, by check. All checks should be made payable
to “EDUtoons, Inc.”
|
All Documents Should Be
Returned To:
EDUtoons,
Inc.
101 East
52nd
Street,
New York,
NY 10022
SUBSCRIPTION
AGREEMENT
The
undersigned (the “Investor”) hereby subscribes to purchase from EDUtoons, Inc.,
a Delaware corporation (the “Company”), such amount of shares of the Company’s
common stock, par value $0.001 per share (the “Shares”), set forth on the
signature page hereto. The Shares are being offered at a purchase
price of $0.001 per Share.
The Company is offering the Shares (the
“Offering”) to certain “accredited investors,” as such term in defined in Rule
501 of Regulation D promulgated under the Securities Act of 1933, as amended
(the “Act”).
Each
investor shall purchase at least 50,000 Shares for an aggregate purchase price
of Five Hundred Dollars ($500.00).
Section
1. Sale of
Shares
Subject
to the terms and conditions hereof and on the basis of the representations and
warranties hereinafter set forth, the Company hereby agrees to issue and sell to
the Investor and the Investor agrees to purchase from the Company, Shares in the
amount of $_________. The Company may accept or reject any
subscription in whole or in part, in its sole discretion.
Section
2. Investor's Representations
and Warranties
As an
inducement to the Company to accept the subscription, the Investor represents
and warrants (which representations and warranties shall be deemed continuing
and shall survive the execution, delivery and performance of this Agreement) as
follows:
(A) The
Investor acknowledges and agrees that the Offering and sale of the Shares is
intended to be exempt from registration under the Act by virtue of Section 4(2)
of the Act, and/or Regulation D, Rule 506 promulgated thereunder (“Regulation
D”) and, accordingly, is being made solely to “accredited investors” as that
term is defined in Regulation D (each an “Accredited Investor”).
(B) The
Investor is a qualified investor, understands the risks involved with acquiring
the Shares, understands the business of the Company, has thoroughly read and
understands all of the provisions of this Subscription Agreement and can
withstand a total loss of its investment.
(C) The
Investor is an Accredited Investor because the Investor is (check appropriate
item):
|
|
i.
|
¨ I
am a natural person whose individual net worth (or joint net worth with my
spouse) will exceed $1,000,000 at the time of
purchase.
|
|
|
ii.
|
¨ I
am a natural person who has had individual income (exclusive of any income
attributable to a spouse) of more than $200,000 for the past two years or
joint income with a spouse of more than $300,000 in each of those years
and have a reasonable expectation of reaching the same income level in the
current year.
|
| iii. |
¨ Investor
is an entity in which each equity owner is an accredited investor as
defined in i. or ii.
above.
|
2
|
|
iv.
|
¨ Investor
is either an organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended (“Code”); a corporation, a Massachusetts
or similar business trust, or a partnership, in each case not formed for
the specific purpose of acquiring the securities being offered, and with
total assets in excess of
$5,000,000.
|
|
|
v.
|
¨ Investor
is a trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring an Interest being offered, whose purchase of
the Interest being offered is directed by a person who, either alone or
with a purchaser representative, has such knowledge and experience in
business and financial matters that Investor is capable, as defined by the
Act, of evaluating the merits and risks of the prospective
investment.
|
|
|
vi.
|
¨ Investor
is a bank as defined in Section 3(a)(2) of the Act, as amended, (a.)
acting in its fiduciary capacity as trustee, or (b.) subscribing for the
purchase of securities being offered on its own
behalf.
|
|
|
vii.
|
¨ Investor
is an individual retirement account (“IRA”) established in the name of a
person or persons who is or are accredited
investors.
|
|
|
viii.
|
¨ Investor
is an employee benefit plan within the meaning of ERISA where investment
decisions are made by a plan fiduciary, as defined in Section 3(21) of
ERISA, which is either a bank, savings and loan association, insurance
company or registered investment advisor, has total assets in excess of
$5,000,000 or is a self-directed plan, with investment decisions made
solely by persons that are accredited investors as defined under the
Act. If you check this statement, you must complete Section
8B.
|
|
|
ix.
|
¨ Investor
is a private investment entity exempted from registration as an investment
company by Section 3(c)(1) of the Investment Company Act of 1940 (the
“1940 Act”) or an investment company registered under the 1940 Act or a
“business development company” as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940 (the “Advisers Act”), and the beneficial
owners are accredited investors under any one of (A) through (G)
above.
|
(D) The
Investor is acquiring the Shares for its own account for investment purposes and
not with a view to distribution, and with no present intention of distributing
the Shares or selling the Shares for distribution. The Investor understands that
the Shares are being sold to the Investor in a transaction which is exempt from
the registration requirements of the Act. The Investor’s acquisition
of the Shares shall constitute a confirmation of the foregoing representation
and warranty and understanding thereof.
(E) The
Investor (or its Purchaser Representative (as defined herein), if any) has such
knowledge and experience in financial and business matters as is required for
evaluating the merits and risks of making this investment, and the Investor or
its Purchaser Representatives has received such information requested by the
Investor concerning the business, management and financial affairs of the
Company in order to evaluate the merits and risks of making this investment.
Further, the Investor acknowledges that the Investor has had the opportunity to
ask questions of, and receive answers from, the officers of the Company
concerning the terms and conditions of this investment and to obtain information
relating to the organization, operation and business of the Company and of the
Company's contracts, agreements and obligations. No representation or warranty
is made by the Company to induce the Investor to make this investment, and any
representation or warranty not made herein is specifically
disclaimed.
3
(F)
The Investor is making the foregoing representations and warranties with the
intent that they may be relied upon by the Company in determining the
suitability of the sale of the Shares to the Investor for purposes of federal
and state securities laws.
(G) The
Investor further acknowledges that the Investor has been advised that the Shares
being purchased by the Investor hereunder have not been registered under the
provisions of the Act (in reliance of the representations of the Investor made
herein) and that the Shares have been offered and sold by the Company in
reliance upon an exemption from registration provided in Section 4(2) of the Act
and/or Regulation D.
(H) In
entering into this Agreement and in purchasing the Shares, the Investor further
acknowledges that:
(i) The
Company has informed the Investor that the Shares have not been offered for sale
by means of general advertising or solicitation.
(ii) The
Shares or any interest therein may not be resold by the Investor in the absence
of a registration under the Act and applicable securities laws or exemption from
registration. In particular, the Investor is aware that the Shares
will be “restricted securities,” as such term is defined in Rule 144 promulgated
under the Act (“Rule 144”). The Company has no obligation to register
any of the Shares purchased by Investor.
(iii) The
following legend (or a legend substantially similar in substance) shall be
placed on the certificate(s) evidencing the Shares purchased
hereunder.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES LAWS AND MAY NOT BE
SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
(iv) The
Company may at any time place a stop transfer order on its transfer books
against the Shares. Such stop order will be removed, and further
transfer of the Shares will be permitted upon an effective registration of such
Shares, or the receipt by the Company of an opinion of counsel reasonably
satisfactory to the Company that such further transfer may be effected pursuant
to an applicable exemption from registration.
(I) The
Investor has completed the Subscription Agreement and has delivered it herewith
and represents and warrants that it is accurate and true in all respects and
that it accurately and completely represents the financial condition of the
Investor on the date hereof. The Investor has no reason to expect there will be
any material adverse change in its financial condition and will advise the
Company of any such changes occurring prior to the closing or termination of the
Offering.
4
(J) The
Investor is not subscribing for any Shares 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, any
seminar or meeting, or any solicitation of a subscription by a person not
previously known to the Investor in connection with investments in securities
generally.
(K) The
Investor has reached the age of majority in the state in which the Investor
resides, has adequate means of providing for the Investor's current needs and
personal contingencies, is able to bear the substantial economic risks of an
investment in the Shares for an indefinite period of time, and has no need for
liquidity in such investment.
(L) The
Investor’s overall commitment to investments that are not readily marketable is
not, and its acquisition of the Shares will not, cause such overall commitment
to become disproportionate to its net worth.
(M) The
Investor understands that the Company shall have the right to accept or reject
this subscription in whole or in part in its sole and exclusive discretion.
Unless this subscription is accepted in whole or in part by the Company prior to
the expiration of the Offering, this subscription shall be deemed rejected in
whole.
(N) It
never has been represented, guaranteed or warranted by any broker, the Company,
any of the directors, shareholders, employees, officers or agents of the
Company, or any other persons, whether expressly or by implication,
that:
(i) the
Company or the Investor will realize any given percentage of profits and/or
amount or type of consideration, profit or loss as a result of the Company's
activities or the Investor's investment in the Company; or
(ii) the
past performance or experience of the management of the Company, or of any other
person, will in any way indicate the predictable results of the ownership of the
Shares or of the Company’s activities.
(O) Investor
understands and acknowledges that the use of the proceeds of the Offering by the
Company will be in the sole discretion of the Company’s management.
(P) No
representations have been made, and no information furnished to the Investor or
the Investor's advisor(s) in connection with the Offering were in any way
inconsistent with the information stated herein.
(Q) __________________________
(insert name of Purchaser Representative: if none leave blank) has acted as the
Investor's Purchaser Representative for purposes of the private placement
exemption under the Act. If the Investor has appointed a “Purchaser
Representative” (which term is used herein with the same meaning as given in
Rule 501(h) of Regulation D), the Investor has been advised by his Purchaser
Representative as to the merits and risks of an investment in the Company in
general and the suitability of an investment in the Shares for the Investor in
particular.
5
Section
3. Indemnification
The
Investor agrees to indemnify, defend and hold harmless each of the Company and
its directors, officers, shareholders, agents, counsel and affiliates of the
Company, and each other person, if any, who controls the Company, as the case
may be, within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended, against any and all losses,
liabilities, claims, damages 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 false
representation or warranty or breach or failure by the Investor to comply with
any covenant or agreement made by the Investor herein or in any other document
furnished by the Investor to any of the foregoing in connection with this
transaction.
Section
4. Binding Effect of
Subscription
The
Investor hereby acknowledges and agrees, subject to any applicable state
securities laws, that the subscription and application hereunder are irrevocable
by Investor, that the Investor is not entitled to cancel, terminate or revoke
this Subscription Agreement and that this Subscription Agreement shall survive
the death or disability of the Investor and shall be binding upon and inure to
the benefit of the Investor and his heirs, executors, administrators,
successors, legal representatives, and assigns. If the Investor is more than one
person, the obligations of the Investor 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
his or her heirs, executors, administrators, successors, legal representatives,
and assigns.
Section
5. Representations and
Warranties of the Company
The
Company represents and warrants to, and agrees with, each Investor as
follows:
(A) The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, with all requisite power and authority
to own, lease, license, and use its properties and assets and to carry out the
business in which it is engaged, except where the failure to have or be any of
the foregoing may not be expected to have a material adverse effect on the
Company's presently conducted businesses.
(C) The
Company has all requisite power and authority to execute, deliver and perform
its obligations under this Agreement, and to issue, sell and deliver the
Shares. This Agreement has been duly authorized by the Company, and
when executed and delivered by the Company, will constitute the legal, valid and
binding obligation of the Company, enforceable as to the Company in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance or transfer, moratorium or
other laws or court decisions, now or hereinafter in effect, relating to or
affecting the rights of creditors generally and as may be limited by general
principles of equity and the discretion of the court having jurisdiction in an
enforcement action (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(D) No
consent, authorization, approval, order, license, certificate or permit of or
from, or declaration or filing with, any federal, state, local or other
governmental authority or any court or any other tribunal is required by the
Company for the execution, delivery or performance by the Company of this
Agreement or the execution, issuance, sale or delivery of the Shares, except for
the filing of a Form D with the Securities and Exchange Commission and filings
under applicable "Blue Sky" laws.
6
(E) No
consent of any party to any contract, agreement, instrument, lease, license,
arrangement or understanding to which the Company is a party or to which any of
its properties or assets are subject is required for the execution, delivery or
performance by the Company of this Agreement, or the execution, issuance, sale
or delivery of the Shares, unless the failure to obtain such consent will not
have a material adverse effect on the Company and/or the Offering.
(F) The
execution, delivery and performance of this Agreement will not violate, result
in a breach of, conflict with (with or without the giving of notice or the
passage of time or both) or entitle any party to terminate or call a default
under any material contract, agreement, instrument, lease, license, arrangement
or understanding or violate or result in a breach of any term of the certificate
of organization or operating agreement of, or conflict with any law, rule,
regulation, order, judgment or decree binding upon, the Company or to which any
of its operations, businesses, properties or assets are subject which
individually or in the aggregate will not have a material adverse effect upon
the operations, business, properties or assets of the Company.
(G) The
Shares, upon delivery to the Investor, will be validly issued, fully paid and
non assessable and will not be issued in violation of any preemptive or other
rights of any members.
Section
6. Income Tax
Risks
Each prospective Investor is urged to
consult with its own representatives, including its own tax and legal advisors,
with respect to the federal (as well as state and local) income tax consequences
of this investment before purchasing any of the Shares.
Section
7. Waiver
The
Investor has made full and complete inquiry with respect to any matters of
interest in connection with this investment and is fully satisfied in all
respects with its investment decision, fully understanding and comprehending the
significant risks associated, acknowledges that it has not relied on any
specific information concerning the Company not contained herein, and
understands that the Company has not made any representations regarding the
Company or the future performance of the Company.
Section
8. Additional
Provisions
(A) No
Waiver. 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.
(B) Notices. Any
notice, demand or other communication which any party hereto may be required, or
may elect, to give to anyone interested hereunder shall be sufficiently given if
(a) deposited, postage prepaid, in a United States mail box, stamped, registered
or certified mail, return receipt requested, addressed to such address as may be
listed on the books of the Company.
(C) Execution. 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 one agreement, binding on all parties, notwithstanding
that all parties are not signatories to the same counterpart.
7
(D) Entire
Agreement. This Subscription Agreement contains the entire
agreement of the parties with respect to the subject matter hereof and there are
no representations, covenants or other agreements except as stated or referred
to herein, and any representations or warranties not contained herein are
disclaimed.
(E) Severability. Each
provision of this Subscription Agreement is intended to be severable from every
other provisions, and the invalidity or illegality of any portion hereof, shall
not affect the validity or legality of the remainder hereof.
(F) Non-Assignability.
This Subscription Agreement is not transferable or assignable by the Investor
except as may be provided herein.
(G) Successors and
Assigns. This Subscription Agreement shall be binding upon and inure to
the benefit of the Company and the Investor and their respective successors,
heirs, personal representatives and permitted assigns.
(H) Law
Governing. This Subscription Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be wholly performed in such state.
|
|
(I)
|
Venue
|
(i) The
Company and Investor irrevocably submit to the exclusive jurisdiction of any New
York State or United States federal court sitting in Nassau or Suffolk Counties,
New York, U.S.A., and any appellate court from any thereof (the “Specified
Courts”), and any suit, action or proceeding brought by the Company or any
Investor, arising out of or based upon this Subscription Agreement or the
Offering (a “Related Proceeding”) shall be maintained in such courts. The
Company and Investor waive any objection to maintaining any Related Proceedings
in such courts whether on the grounds of venue, residence or domicile or on the
ground that the Related Proceedings have been brought to an inconvenient
forum.
(ii) The
Company agrees that service of all writs, process and summonses in any Related
Proceedings brought by any Investor against it in any New York State or United
States Federal Court sitting in Nassau or Suffolk Counties, State of New York,
may be made upon Gersten Savage LLP, 600 Lexington Ave., 9th Floor,
New York, NY 10022 (the Company’s “Process Agent”). The Company represents and
warrants that the Company's Process Agent has agreed to act as its agent for
service of process, and the Company agrees to take any and all action, including
the filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. If
the Company shall appoint without delay another such agent and notify the
Investors of such appointment. With respect to any such action in any New York
State or United States Federal Court in Nassau or Suffolk County, State of New
York, service of process upon the Company’s Process Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company.
(J) Commissions/Finder’s
Fees. The Company reserves the right to pay commissions and/or
finder’s fees in cash, securities of the Company, a combination thereof, or
other combination to individuals and/or entities in connection with the sale of
the Shares in this Offering, in amounts the Company deems appropriate in the
Company’s sole and exclusive discretion.
8
Please
countersign and return two copies of this Subscription Agreement to the Company.
A countersigned copy of this Subscription Agreement will be returned to the
Investor, together with certificates representing the Shares. For the
purpose of having the certificates prepared, please indicate the exact manner in
which the certificates are to be made out in the space provided for
below.
|
Subscription
Amount:
|
$ | |||
|
Number
of Shares Subscribed for:
|
|
FOR
INDIVIDUALS:
|
|
|
|
|
|
(Print
Name)
|
|
|
|
|
|
(Signature)
|
|
|
Dated:
__________________, 2010
|
|
|
(Social
Security Number)
|
|
|
FOR
CORPORATIONS:
|
|
|
Name
of Company
|
|
|
|
|
|
Executive
Officer of Company
|
|
|
Dated:
__________________, 2010
|
|
|
Signature
of Authorized
Individual
|
9
Please
countersign and return two copies of this Subscription Agreement to the Company.
A countersigned copy of this Subscription Agreement will be returned to the
Investor, together with certificates representing the Shares. For the
purpose of having the certificates prepared, please indicate the exact manner in
which the certificates are to be made out in the space provided for
below.
|
Subscription
Amount:
|
$ | |||
|
Number
of Shares Subscribed for:
|
|
FOR
PARTNERSHIPS:
|
|
|
|
|
|
Name
of Partnership
|
|
|
|
|
|
Name
of Authorized Partner
|
|
|
Dated:
__________________, 2010
|
|
|
Signature
of Authorized Partner
|
|
|
FOR
TRUSTS:
|
|
|
|
|
|
Name
of Trust
|
|
|
|
|
|
Name
of Authorized Trustee
|
|
|
Dated:
__________________, 2010
|
|
|
Signature
of Authorized Trustee
|
10