UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 24,
2014
HORIYOSHI WORLDWIDE INC.
(Exact name of registrant as specified in its charter)
Nevada |
000-53976 |
98-0513655 |
(State or other jurisdiction of |
(Commission File Number) |
(IRS Employer |
incorporation) |
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Identification No.) |
506 S. Spring Street #13575, Los Angeles,
California, USA |
90013 |
(Address of principal executive offices) |
(Zip Code) |
Registrants telephone number, including area code (213)
741-1920
N/A
(Former name or former address, if changed
since last report.)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
[ ] Written communications pursuant to
Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
[ ] Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 |
Entry into Material Definitive Agreement
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Item 3.02 |
Unregistered Sales of Equity Securities
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As of March 31, 2014, our company was indebted to Lonestar
Capital Limited for $1,807,610 in respect of loans advanced to us. On July 24,
2014, we entered into a debt settlement and subscription agreement pursuant to
which Lonestar Capital agreed to accept, in repayment of $450,000 of debt,
22,500,000 restricted common shares in our capital stock at a deemed price of
$0.02 per share ($450,000 in the aggregate). The securities issued to Lonestar
Capital were issued to a non-US persons (as that term is defined in Regulation S
of the Securities Act of 1933), in an offshore transaction relying on Regulation
S of the Securities Act of 1933, as amended. Lonestar Capital is an affiliate of
our company. As a result of the transactions described in this report Lonestar
Capital owns and controls approximately 44.85% of our issued and outstanding
common shares.
Also on July 24, 2014 we entered into subscription agreements
with 14 subscribers for the issuance of 27,892,098 common shares at deemed price
of $0.01 per share ($27,892.10 in the aggregate). The 27,892,098 shares were
issued in partial compensation for consulting services rendered to our company
by the subscribers. 15,672,098 of these shares issued were issued to 11 non-US
persons in an offshore transaction relying on Regulation S of the Securities Act
of 1933, as amended.
The balance of 12,220,000 shares were issued to 3 US persons
relying on the exemptions from registration provided by Section 4(2) of the
Securities Act of 1933 and upon Rule 506 of Regulation D of the Securities Act
of 1933. Of these, 200,000 were issued to our Director, Raymond Catroppa,
5,820,000 were issued to our Director and Chief Financial Officer, Darren
Takemoto, and 6,200,000 were issued to our Director, President and Chief
Executive Officer, Kerry Chung.
As a result of the above issuances, we had 51,202,278 common
shares outstanding as at the date of this report.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
HORIYOSHI WORLDWIDE INC.
/s/Kerry Chung |
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Kerry Chung |
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President and Chief Executive Officer |
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Date: July 28, 2014 |
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THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE
"SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING OF SECURITIES IN AN OFFSHORE
TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO
REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT").
NONE OF THE SECURITIES TO WHICH THIS SUBSCRIPTION AGREEMENT
RELATES HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES
LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE 1933 ACT, PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS.
PRIVATE PLACEMENT SUBSCRIPTION
FOR NON U.S.
SUBSCRIBERS
HORIYOSHI WORLDWIDE INC.
(the
"Company")
PRIVATE PLACEMENT
INSTRUCTIONS TO SUBSCRIBER:
1. |
COMPLETE the information on page 2 of this
Subscription Agreement. |
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2. |
FAX OR EMAIL a copy of page 2 of this Subscription
Agreement to •, attention • at • or •. |
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3. |
COURIER the originally executed copy of the entire
Subscription Agreement to •, counsel to the Company,
to |
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PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
HORIYOSHI WORLDWIDE INC.
Subject and pursuant to the attached "Terms and Conditions" of
this Subscription Agreement, including all schedules and appendices attached
hereto, the Subscriber hereby irrevocably subscribes for, and on the Closing
Date, will purchase from the Company, the following securities at the following
price:
____________________ Shares |
US$0.01 per Share for a total purchase
price of US$______________. |
The subscriber owns, directly or
indirectly, the following securities of the Company: |
[Check if applicable] The
Subscriber [ ] is an affiliate of the Company
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The Subscriber directs the Company to issue, register and
deliver the certificates representing the Shares as follows:
REGISTRATION INSTRUCTIONS: |
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DELIVERY INSTRUCTIONS:
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(all information below is required) |
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Name to appear on certificate |
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Name and account reference, if applicable |
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SIN/SSN/Tax ID No. |
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Contact name |
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Address of Subscriber |
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Address |
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Telephone number |
EXECUTED by the Subscriber this _______ day of
_____________________, 2014. By executing this Agreement, the Subscriber
certifies that the Subscriber and any beneficial purchaser for whom the
Subscriber is acting is resident in the jurisdiction shown as the "Address of
the Subscriber". The address of the Subscriber will be accepted by the Company
as a representative as to the address of residency for the Subscriber.
WITNESS: |
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EXECUTION
BY SUBSCRIBER: |
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X
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Signature of witness |
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Signature of individual (if Subscriber is
an individual) |
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X
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Name of witness |
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Authorized signatory (if Subscriber is not
an individual) |
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Address of witness |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print)
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ACCEPTED this _______ day of ______________ ,
2014. |
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HORIYOSHI WORLDWIDE INC. |
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Address of
Subscriber (residence) |
Per: |
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Authorized signatory |
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Telephone number
and e-mail address |
By signing this acceptance, the Company agrees to be bound by
all representations, warranties, covenants and agreements on pages 3-11 hereof.
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THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE
"SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING OF SECURITIES IN AN OFFSHORE
TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO
REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT").
NONE OF THE SECURITIES TO WHICH THIS SUBSCRIPTION AGREEMENT
RELATES HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES
LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE 1933 ACT, PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS.
PRIVATE PLACEMENT SUBSCRIPTION
(Non U.S. Subscribers
Only)
TO: Horiyoshi Worldwide Inc. (the "Company")
Purchase of Shares
1. SUBSCRIPTION
1.1 The undersigned (the "Subscriber") hereby irrevocably
subscribes for and agrees to purchase the number of shares of the Company's
common stock (the "Shares " or "Securities") as set out on page 2 of this
Subscription Agreement at a deemed price of US$0.01 per Share (such subscription
and agreement to purchase being the "Subscription"), for the total subscription
price as set out on page 2 of this Subscription Agreement (the "Subscription
Proceeds"), which Subscription Proceeds are tendered herewith, on the basis of
the representations and warranties and subject to the terms and conditions set
forth herein.
1.2 The Company hereby agrees to sell, on the basis of the
representations and warranties and subject to the terms and conditions set forth
herein, to the Subscriber the Shares. Subject to the terms hereof, the
Subscription Agreement will be effective upon its acceptance by the Company.
1.3 Unless otherwise provided, all dollar amounts referred to
in this Subscription Agreement are in lawful money of the United States of
America.
2. PAYMENT
2.1 The Company acknowledges that the securities issued to
the Subscriber hereunder are in consideration of services duly rendered
to the Company by the Subscriber, and the Company hereby acknowledges full
satisfaction and receipt of the Subscription Proceeds.
2.2 The Subscriber acknowledges and agrees that this
Subscription Agreement and any other documents delivered in connection herewith
will be held by the Company's lawyers on behalf of the Company. In the event
that this Subscription Agreement is not accepted by the Company for whatever
reason within 60 days of the delivery of an executed Subscription Agreement by
the Subscriber, this Subscription Agreement, the Subscription Proceeds and any
other documents delivered in connection herewith will be returned to the
Subscriber at the address of the Subscriber as set forth in this Subscription
Agreement without interest or deduction.
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3. QUESTIONNAIRES AND UNDERTAKINGS AND
DIRECTIONS
3.1 The Subscriber must complete, sign and return to the
Company one (1) executed copy of this Subscription Agreement.
3.2 The Subscriber shall complete, sign and return to the
Company as soon as possible, on request by the Company, any documents,
questionnaires, notices and undertakings as may be required by regulatory
authorities, the OTC Bulletin Board, stock exchanges and applicable law.
4. CLOSING
4.1 Closing of the purchase and sale of the Shares shall occur
on such date as may be determined by the Company in its sole discretion (the
"Closing Date"). The Subscriber acknowledges that Shares may be issued to other
subscribers under this offering (the "Offering") before or after the Closing
Date. The Company, may, at its discretion, elect to close the Offering in one or
more closings, in which event the Company may agree with one or more subscribers
(including the Subscriber hereunder) to complete delivery of the Shares and the
Securities to such subscriber(s) against payment therefore at any time on or
prior to the Closing Date.
4.2 The Subscriber will deliver to the Company the Subscription
Agreement and all applicable schedules and required forms, duly executed, and
payment in full for the total price of the Securities to be purchased by the
Purchaser.
5. ACKNOWLEDGEMENTS OF SUBSCRIBER
5.1 The Subscriber acknowledges and agrees that:
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(a) |
none of the Securities have been registered under the
Securities Act of 1933, as amended (the "1933 Act"), or under any state
securities or "blue sky" laws of any state of the United States, and are
being offered only in a transaction not involving any public offering
within the meaning of the 1933 Act, and, unless so registered, may not be
offered or sold in the United States or to U.S. Persons (as defined
herein), except pursuant to an effective registration statement under the
1933 Act, or pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the 1933 Act, and in each
case only in accordance with applicable state and provincial securities
laws; |
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(b) |
the Company will refuse to register any transfer of any
of the Securities not made in accordance with the provisions of Regulation
S, pursuant to an effective registration statement under the 1933 Act or
pursuant to an available exemption from, or in a transaction not subject
to, the registration requirements of the 1933 Act; |
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(c) |
the decision to execute this Subscription Agreement and
purchase the Shares agreed to be purchased hereunder has not been based
upon any oral or written representation as to fact or otherwise made by or
on behalf of the Company and such decision is based solely upon a review
of publicly available information regarding the Company available on the
website of the United States Securities and Exchange Commission (the
"SEC") available at www.sec.gov; |
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(d) |
the Subscriber and the Subscriber's advisor(s) have had a
reasonable opportunity to review the Company Information and to ask
questions of and receive answers from the Company regarding the Offering,
and to obtain additional information, to the extent possessed or
obtainable without unreasonable effort or expense, necessary to verify the
accuracy of the information contained in the Company Information, or any
other document provided to the Subscriber; |
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(e) |
the books and records of the Company were available upon
reasonable notice for inspection, subject to certain confidentiality
restrictions, by the Subscriber during reasonable business hours at its
principal place of business and that all documents, records and books
pertaining to this Offering have been made available for inspection by the
Subscriber, the Subscriber's attorney and/or
advisor(s); |
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(f) |
by execution hereof the Subscriber has waived the need
for the Company to communicate its acceptance of the purchase of the
Shares pursuant to this Subscription Agreement; |
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(g) |
the Company is entitled to rely on the representations
and warranties and the statements and answers of the Subscriber contained
in this Subscription Agreement and the Subscriber will hold harmless the
Company from any loss or damage it may suffer as a result of the
Subscriber's failure to correctly complete this Subscription
Agreement; |
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(h) |
the Subscriber will indemnify and hold harmless the
Company and, where applicable, its respective directors, officers,
employees, agents, advisors and shareholders from and against any and all
loss, liability, claim, damage and expense whatsoever (including, but not
limited to, any and all fees, costs and expenses whatsoever reasonably
incurred in investigating, preparing or defending against any claim,
lawsuit, administrative proceeding or investigation whether commenced or
threatened) arising out of or based upon any acknowledgment,
representation or warranty of the Subscriber contained herein, or in any
other document furnished by the Subscriber to the Company in connection
herewith, being untrue in any material respect or any breach or failure by
the Subscriber to comply with any covenant or agreement made by the
Subscriber to the Company in connection therewith; |
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(i) |
the issuance and sale of the Shares to the Subscriber
will not be completed if it would be unlawful or if, in the discretion of
the Company acting reasonably, it is not in the best interests of the
Company; |
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(j) |
the Subscriber has been advised to consult the
Subscriber's own legal, tax and other advisors with respect to the merits
and risks of an investment in the Securities and with respect to the
applicable resale restrictions, and it is solely responsible (and the
Company is not in any way responsible) for compliance with: |
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(i) |
any applicable laws of the jurisdiction in which the
Subscriber is resident in connection with the distribution of the
Securities hereunder, and |
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(ii) |
applicable resale restrictions; |
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(k) |
the Subscriber has not acquired the Shares as a result
of, and will not itself engage in, any "directed selling efforts" (as
defined in Regulation S under the 1933 Act) in the United States in
respect of any of the Securities which would include any activities
undertaken for the purpose of, or that could reasonably be expected to
have the effect of, conditioning the market in the United States for the
resale of any of the Securities; provided, however, that the Subscriber
may sell or otherwise dispose of any of the Shares or the pursuant to
registration of any of the Shares pursuant to the 1933 Act and any
applicable state securities laws or under an exemption from such
registration requirements and as otherwise provided herein; |
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(l) |
the Subscriber is outside the United States when
receiving and executing this Subscription Agreement and is acquiring the
Shares as principal for its own account, for investment purposes only, and
not with a view to, or for, resale, distribution or fractionalization
thereof, in whole or in part, and no other person has a direct or indirect
beneficial interest in such Shares; |
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(m) |
none of the Securities may be offered or sold to a U.S.
Person or for the account or benefit of a U.S. Person (other than a
distributor) prior to the end of the expiration of a period of one year
after the date of original issuance of the Securities; |
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(n) |
the statutory and regulatory basis for the exemption
claimed for the offer and sale of the Shares, although in technical
compliance with Regulation S, would not be available if the offering is
part of a plan or scheme to evade the registration provisions of the 1933
Act; |
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(o) |
none of the Securities are listed on any stock exchange
or automated dealer quotation system and no representation has been made
to the Subscriber that any of the Securities will become listed on
any stock exchange or automated dealer quotation system,
except that currently certain market makers make market in the shares of
the Company's common stock on the OTC Bulletin Board; |
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(p) |
neither the SEC nor any other securities commission or
similar regulatory authority has reviewed or passed on the merits of any
of the Securities; |
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(q) |
no documents in connection with this Offering have been
reviewed by the SEC or any state securities administrators; |
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(r) |
there is no government or other insurance covering any of
the Securities; and |
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(s) |
this Subscription Agreement is not enforceable by the
Subscriber unless it has been accepted by the Company, and the Subscriber
acknowledges and agrees that the Company reserves the right to reject any
subscription for any reason. |
6. REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE SUBSCRIBER
6.1 The Subscriber hereby represents and Securities to and
covenants with the Company (which representations, warranties and covenants
shall survive the Closing Date) that:
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the Subscriber is not a U.S. Person (as defined
herein); |
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(b) |
the Subscriber is not acquiring the Shares for the
account or benefit of, directly or indirectly, any U.S. Person (as defined
herein); |
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(c) |
the Subscriber is resident in the jurisdiction set out on
page 2 of this Subscription Agreement; |
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(d) |
the Subscriber: |
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(i) |
is knowledgeable of, or has been independently advised as
to, the applicable securities laws of the securities regulators having
application in the jurisdiction in which the Subscriber is resident (the
"International Jurisdiction") which would apply to the acquisition of the
Shares, |
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(ii) |
is purchasing the Shares pursuant to exemptions from
prospectus or equivalent requirements under applicable securities laws or,
if such is not applicable, the Subscriber is permitted to purchase the
Shares under the applicable securities laws of the securities regulators
in the International Jurisdiction without the need to rely on any
exemptions, |
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(iii) |
acknowledges that the applicable securities laws of the
authorities in the International Jurisdiction do not require the Company
to make any filings or seek any approvals of any kind whatsoever from any
securities regulator of any kind whatsoever in the International
Jurisdiction in connection with the issue and sale or resale of any of the
Securities, and |
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(iv) |
represents and Securities that the acquisition of the
Shares by the Subscriber does not trigger: |
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A. |
any obligation to prepare and file a prospectus or
similar document, or any other report with respect to such purchase in the
International Jurisdiction, or |
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any continuous disclosure reporting obligation of the
Company in the International Jurisdiction, and |
the Subscriber will, if requested by
the Company, deliver to the Company a certificate or opinion of local counsel
from the International Jurisdiction which will confirm the matters referred to
in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Company,
acting reasonably;
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the Subscriber is acquiring the Shares as principal for
investment only and not with a view to, or for, resale, distribution or
fractionalization thereof, in whole or in part, and, in particular, it has
no intention to distribute either directly or indirectly any of the
Securities in the United States or to U.S. Persons (as defined
herein); |
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(f) |
the Subscriber is outside the United States when
receiving and executing this Subscription Agreement; |
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(g) |
the Subscriber understands and agrees not to engage in
any hedging transactions involving any of the Securities unless such
transactions are in compliance with the provisions of the 1933 Act and in
each case only in accordance with applicable state securities
laws; |
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(h) |
the Subscriber acknowledges that it has not acquired the
Shares as a result of, and will not itself engage in, any "directed
selling efforts" (as defined in Regulation S under the 1933 Act) in the
United States in respect of any of the Securities which would include any
activities undertaken for the purpose of, or that could reasonably be
expected to have the effect of, conditioning the market in the United
States for the resale of any of the Securities; provided, however, that
the Subscriber may sell or otherwise dispose of any of the Shares pursuant
to registration of any of the Shares pursuant to the 1933 Act and any
applicable state securities laws or under an exemption from such
registration requirements and as otherwise provided herein; |
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(i) |
the Subscriber has the legal capacity and competence to
enter into and execute this Subscription Agreement and to take all actions
required pursuant hereto and, if the Subscriber is a corporation, it is
duly incorporated and validly subsisting under the laws of its
jurisdiction of incorporation and all necessary approvals by its
directors, shareholders and others have been obtained to authorize
execution and performance of this Subscription Agreement on behalf of the
Subscriber; |
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(j) |
the entering into of this Subscription Agreement and the
transactions contemplated hereby do not result in the violation of any of
the terms and provisions of any law applicable to, or, if applicable, the
constating documents of, the Subscriber, or of any agreement, written or
oral, to which the Subscriber may be a party or by which the Subscriber is
or may be bound; |
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(k) |
the Subscriber has duly executed and delivered this
Subscription Agreement and it constitutes a valid and binding agreement of
the Subscriber enforceable against the Subscriber; |
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(l) |
the Subscriber has received and carefully read this
Subscription Agreement; |
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(m) |
the Subscriber (i) has adequate net worth and means of
providing for its current financial needs and possible personal
contingencies, (ii) has no need for liquidity in this investment, and
(iii) is able to bear the economic risks of an investment in the
Securities for an indefinite period of time, and can afford the complete
loss of such investment; |
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(n) |
the Subscriber has the requisite knowledge and experience
in financial and business matters as to be capable of evaluating the
merits and risks of the investment in the Securities and the
Company; |
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(o) |
the Subscriber understands and agrees that the Company
and others will rely upon the truth and accuracy of the acknowledgements,
representations, warranties, covenants and agreements contained in this
Subscription Agreement, and agrees that if any of such acknowledgements,
representations and agreements are no longer accurate or have been
breached, the Subscriber shall promptly notify the Company; |
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(p) |
the Subscriber is aware that an investment in the Company
is speculative and involves certain risks, including the possible loss of
the investment; |
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(q) |
the Subscriber is purchasing the Shares for its own
account for investment purposes only and not for the account of any other
person and not for distribution, assignment or resale to others, and no
other person has a direct or indirect beneficial interest is such Shares,
and the Subscriber has not subdivided his interest in the Shares with any
other person; |
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(r) |
the Subscriber is not an underwriter of, or dealer in,
the shares of the Company's common stock, nor is the Subscriber
participating, pursuant to a contractual agreement or otherwise, in the
distribution of the Shares; |
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(s) |
the Subscriber has made an independent examination and
investigation of an investment in the Securities and the Company and has
depended on the advice of its legal and financial advisors and agrees that
the Company will not be responsible in anyway whatsoever for the
Subscriber's decision to invest in the Securities and the
Company; |
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(t) |
if the Subscriber is acquiring the Shares as a fiduciary
or agent for one or more investor accounts, the Subscriber has sole
investment discretion with respect to each such account, and the
Subscriber has full power to make the foregoing acknowledgements,
representations and agreements on behalf of such account; |
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(u) |
the Subscriber is not aware of any advertisement of any
of the Shares and is not acquiring the Shares as a result of any form of
general solicitation or general advertising including advertisements,
articles, notices or other communications published in any newspaper,
magazine or similar media or broadcast over radio or television, or any
seminar or meeting whose attendees have been invited by general
solicitation or general advertising; |
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(v) |
no person has made to the Subscriber any written or oral
representations: |
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(i) |
that any person will resell or repurchase any of the
Securities, |
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(ii) |
that any person will refund the purchase price of any of
the Securities, |
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(iii) |
as to the future price or value of any of the Securities,
or |
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(iv) |
that any of the Securities will be listed and posted for
trading on any stock exchange or automated dealer quotation system or that
application has been made to list and post any of the Securities of the
Company on any stock exchange or automated dealer quotation system, except
that currently certain market makers make market in the shares of the
Company's common stock on the OTC Bulletin Board. |
6.2 In this Subscription Agreement, the term "U.S. Person"
shall have the meaning ascribed thereto in Regulation S promulgated under the
1933 Act and for the purpose of the Subscription Agreement includes any person
in the United States.
7. ACKNOWLEDGEMENT AND WAIVER
7.1 The Subscriber has acknowledged that the decision to
purchase the Shares was solely made on the Company Information. The Subscriber
hereby waives, to the fullest extent permitted by law, any rights of withdrawal,
rescission or compensation for damages to which the Subscriber might be entitled
in connection with the distribution of any of the Shares.
8. REPRESENTATIONS AND WARRANTIES WILL BE
RELIED UPON BY THE COMPANY
8.1 The Subscriber acknowledges that the acknowledgements,
representations and warranties contained herein are made by it with the
intention that they may be relied upon by the Company and its legal counsel in
determining the Subscriber's eligibility to purchase the Shares under applicable
securities legislation, or (if applicable) the eligibility of others on whose behalf it is contracting
hereunder to purchase the Shares under applicable securities legislation. The
Subscriber further agrees that by accepting delivery of the certificates
representing the Shares, it will be representing and warranting that the
acknowledgements representations and warranties contained herein are true and
correct as of the date hereof and will continue in full force and effect
notwithstanding any subsequent disposition by the Subscriber of such Shares.
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9. RESALE RESTRICTIONS
9.1 The Subscriber acknowledges that any resale of the
Securities will be subject to resale restrictions contained in the securities
legislation applicable to the Subscriber or proposed transferee. The Subscriber
acknowledges that none of the Securities have been registered under the 1933 Act
or the securities laws of any state of the United States. None of the Securities
may be offered or sold in the United States unless registered in accordance with
federal securities laws and all applicable state securities laws or exemptions
from such registration requirements are available.
10. LEGENDING AND REGISTRATION OF SUBJECT
SECURITIES
10.1 The Subscriber hereby acknowledges that upon the issuance
thereof, and until such time as the same is no longer required under the
applicable securities laws and regulations, the certificates representing any of
the Shares, will bear a legend in substantially the following form:
THE SECURITIES
REPRESENTED HEREBY HAVE BEEN OFFERED IN AN OFFSHORE TRANSACTION TO A PERSON WHO
IS NOT A U.S. PERSON (AS DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT").
NONE OF THE
SECURITIES REPRESENTED HEREBY HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR ANY
U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR
SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES (AS DEFINED HEREIN) OR TO
U.S. PERSONS EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE
1933 ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS
INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE 1933
ACT. "UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED BY REGULATION S UNDER THE
1933 ACT.
10.2 The Subscriber hereby acknowledges and agrees to the
Company making a notation on its records or giving instructions to the registrar
and transfer agent of the Company in order to implement the restrictions on
transfer set forth and described in this Subscription Agreement.
11. NOTICES TO RESIDENTS OF THE EUROPEAN
ECONOMIC AREA
11.1 In relation to each member state of the European Economic
Area (the "EEA") which has implemented Directive 2003/71/EC (the "Prospectus
Directive") (each, a "Relevant Member State"), Shares may only be offered or
sold in the Relevant Member State under the following exemptions under the
Prospectus Directive, if they have been implemented in that Relevant Member
State:
|
(a) |
to legal entities which are authorised or regulated to
operate in the financial markets or, if not so authorised or regulated,
whose corporate purpose is solely to invest in
securities; |
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|
(b) |
to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year; (2) a
total balance sheet of more than €43,000,000; and (3) an annual net
turnover of more than €50,000,000, as shown in its last annual or
consolidated accounts; |
|
|
|
|
(c) |
in any other circumstances falling within Article 3(2) of
the Prospectus Directive; |
provided that no such offer of Shares shall result in a
requirement for the publication by the Company of a prospectus pursuant to
Article 3 of the Prospectus Directive.
12. COSTS
12.1 The Subscriber acknowledges and agrees that all costs and
expenses incurred by the Subscriber (including any fees and disbursements of any
special counsel retained by the Subscriber) relating to the purchase of the
Shares shall be borne by the Subscriber.
13. GOVERNING LAW
13.1 This Subscription Agreement is governed by the laws of the
State of Nevada. The Subscriber, in its personal or corporate capacity and, if
applicable, on behalf of each beneficial purchaser for whom it is acting,
irrevocably attorns to the exclusive jurisdiction of the Courts of the State of
Nevada.
14. SURVIVAL
14.1 This Subscription Agreement, including without limitation
the representations, warranties and covenants contained herein, shall survive
and continue in full force and effect and be binding upon the parties hereto
notwithstanding the completion of the purchase of the Shares by the Subscriber
pursuant hereto.
15. ASSIGNMENT
15.1 This Subscription Agreement is not transferable or
assignable.
16. SEVERABILITY
16.1 The invalidity or unenforceability of any particular
provision of this Subscription Agreement shall not affect or limit the validity
or enforceability of the remaining provisions of this Subscription Agreement.
17. ENTIRE AGREEMENT
17.1 Except as expressly provided in this Subscription
Agreement and in the agreements, instruments and other documents contemplated or
provided for herein, this Subscription Agreement contains the entire agreement
between the parties with respect to the sale of the Shares and there are no
other terms, conditions, representations or warranties, whether expressed,
implied, oral or written, by statute or common law, by the Company or by anyone
else.
18. NOTICES
18.1 All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Subscriber shall be
directed to the address on page 2 and notices to the Company shall be directed
to it at the first page of this Subscription Agreement.
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19. COUNTERPARTS AND ELECTRONIC
MEANS
19.1 This Subscription Agreement may be executed in any number
of counterparts, each of which, when so executed and delivered, shall constitute
an original and all of which together shall constitute one instrument. Delivery
of an executed copy of this Subscription Agreement by electronic facsimile
transmission or other means of electronic communication capable of producing a printed copy will be
deemed to be execution and delivery of this Subscription Agreement as of the
date hereinafter set forth.