EXHIBIT 10.1
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT ("Agreement") is made this [Date] by and
between Mark A. DiSalvo (the "Seller"), and [Name of Investor], a [Type of
Organization] (the "Subscriber").
WHEREAS, the Seller is desirous of potential investors; and
WHEREAS, the Subscriber is desirous of investing in Gump & Company, Inc.
(the "Company") pursuant to the terms of that certain offering (the
"Offering") detailed in that certain Prospectus dated ________ and
constituting part of that certain Registration Statement on Form SB-2 as
declared effective by the U.S. Securities and Exchange Commission (the
"SEC") on __________ (the "Registration Statement");
NOW, THEREFORE, in consideration of the promises and agreements set forth
herein, the parties, each intending to be legally bound hereby, do promise
and agree as follows:
1. SECURITIES
A. The undersigned Subscriber hereby subscribes for and agrees to
purchase shares (the "Shares") of the Company's common stock, par value
$.01 per share (the "Common Stock") more fully described in the
Prospectus which is incorporated herein by reference.
B. The Subscriber hereby encloses a check representing irrevocable
payment of $[amount] (the "Purchase Payment") made payable to Securities
Transfer Corporation, Escrow Acct. Subscriber hereby confirms that he has
reviewed a copy of the Prospectus.
2. REPRESENTATIONS AND WARRANTIES
A. In order to induce the Seller to accept this Subscription
Agreement, the Subscriber represents and warrants to, and covenants and
agrees with, the Seller as follows.
1. The Subscriber understands and agrees that unless properly
revoked before closing of a sale of the Shares to the Subscriber, this
subscription will be irrevocable and will survive the Subscriber's death,
disability or insolvency, except that the Subscriber will have no
obligations in the event that this Agreement is rejected in its entirety by
the Seller.
2. The Subscriber understands and agrees that (a) this
Subscription Agreement and the payment tendered in accordance herewith, may
be accepted or rejected in whole or in part in the sole and absolute
discretion of the Seller; the unaccepted remainder of the payment to be
refunded to the Subscriber in the event that the Seller does not accept
the entire payment and if the Seller accepts this Agreement in whole or
part and the Subscriber tenders the payment to the Seller, then the
Subscriber will become a shareholder of the Company.
3. The Subscriber has read carefully each of this Agreement and
the Prospectus (collectively, the "Subject Documents") and, to the extent
believed necessary, has discussed with its counsel the representations,
warranties and agreements which the Subscriber makes by signing this
Agreement. The Subscriber understands that no federal or state agency has
made any finding or determination regarding the fairness of the Offering,
or any recommendation or endorsement of the Offering.
4. The Subscriber is not subscribing for the 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 or entity not previously known
to the Subscriber in connection with investment in securities generally.
5. The Subscriber represents that in making this subscription to
purchase the Shares no oral representations or warranties have been made to
Subscriber. The Subscriber acknowledges that it has been advised that no
person or entity is authorized to give any information, or to make any
statement regarding the Company or the Offering, and that any such
information or statement must not be relied upon as having been authorized
by the Company, their officers, affiliates or professional advisors.
6. The Subscriber has full power and authority to execute and
deliver this Agreement, and such Agreement has been duly executed and
delivered by or on behalf of the Subscriber and constitutes a legal, valid
and binding obligation of the Subscriber enforceable in accordance with its
respective terms, except to the extent such enforceability may be limited
by the laws of bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors' rights generally or by general principles of
equity.
7. Neither the execution, delivery nor performance by the
Subscriber of this Agreement violates or conflicts with, creates (with or
without the giving of notice or the lapse of time, or both) a default under
or a lien or encumbrance upon any of the Subscriber's assets or properties
pursuant to or requires the consent, approval or order of any government or
governmental agency or other person or entity under (a) any note,
indenture, lease, license or other material agreement to which the
Subscriber is a party or by which it or any of its assets or properties is
bound or (b) any statute, law, rule, regulation or court decree binding
upon or applicable to the Subscriber or its assets or properties. If the
Subscriber is not a natural person, the execution and delivery by the
Subscriber of this Agreement have been duly authorized by all necessary
corporate or other action on behalf of the Subscriber and such investment
will not constitute a breach or violation of, or default under, the charter
or by-laws or equivalent governing documents of the Subscriber.
8. The Subscriber has received and read the Subject Documents and
understands all of the terms of this Offering and the risks associated with
this investment, including without limitation the risks identified under
the heading "Risk Factors" in the Prospectus.
9. The Subscriber, if an individual, is at least 21 years of age
and has full legal capacity to enter into and perform his obligations under
the Agreement. The Subscriber, if signing this Subscription Agreement on
behalf of an entity, has been duly authorized by such entity to do so.
10. If the Subscriber is, or is acting on behalf of, an employee
benefit plan (the "Plan") which is subject to ERISA: (a) the Plan, and any
fiduciaries responsible for the Plan's investments, are aware of and
understand the Company's investment objectives, policies and strategies,
and the decision to invest the Plan's assets in the Company was made with
appropriate consideration of relevant investment factors with regard to the
Plan including the diversification requirements of Section 404(a)(1)(c)(3)
of ERISA; (b) the fiduciary or other person signing this Subscription
Agreement on behalf of the Subscriber has not received or relied on any
advice of the Seller or the Company with respect to an investment in the
Company; (c) this subscription and the investment contemplated hereby are
authorized and executed in accordance with all requirements applicable to
the Plan under its governing instruments; and (d) the Subscriber
acknowledges its understanding that the Seller, the Company and their
Manager will not be a "fiduciary" (within the meaning of Section 3(21) of
ERISA) with respect of any assets of the Plan by reason of the Subscriber's
investment in the Company .
11. The foregoing representations and warranties are true and
accurate as of the date hereof and will be true and accurate as of the date
of delivery of this Agreement to the Seller and will survive such
delivery. If at any time prior to issuance of the Shares to the Subscriber,
any representation and warranty of the Subscriber is no longer true, the
Subscriber promptly will give written notice to the Seller specifying
which representations and warranties are not true and the reason therefore,
whereupon the Subscriber's subscription may be rejected or, if previously
accepted, such acceptance may be rescinded.
12. The Subscriber acknowledges that it understands the meaning
and legal consequences of the representations, warranties, acknowledgment
and agreements contained in this Agreement, and hereby agrees to indemnify
and hold harmless the Seller and Company, their members, officers,
managers, affiliates, agents and representatives, from and against any and
all loss, damage, expense, claim, liability, action, suit or proceeding
(including the reasonable fees and expenses of legal counsel)
(collectively, "Loss") as incurred arising out of or in any manner
whatsoever connected with a breach of any representation or warranty of the
Subscriber, or the Subscriber's failure to perform any obligation or
agreement, contained in this Agreement.
3. EXECUTION IN COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original and all of which, taken together, will
constitute the same agreement.
4. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in
writing and delivered personally to the other designated party at the above
stated address or mailed by certified, registered or Express mail, return
receipt requested or by Federal Express.
B. Either party may change the address to which notice or payment is
to be sent by written notice to the other under any provision of this
paragraph.
5. JURISDICTION/DISPUTES
This Agreement shall be governed in accordance with the laws of the State
of California. All disputes under this Agreement shall be resolved by
litigation in the courts of the State of California including the federal
courts therein and the Parties all consent to the jurisdiction of such
courts, agree to accept service of process by mail, and hereby waive any
jurisdictional or venue defenses otherwise available to it.
6. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, their heirs, administrators, successors
and assigns.
7. ASSIGNABILITY
Neither party may assign this Agreement or the rights and obligations
thereunder to any third party without the prior express written approval of
the other party which shall not be unreasonably withheld.
8. WAIVER
No waiver by either party of any default shall be deemed as a waiver of
prior or subsequent default of the same of other provisions of this
Agreement.
9. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by
a court of competent jurisdiction, such invalidity shall not affect the
validity or operation of any other term, clause or provision and such
invalid term, clause or provision shall be deemed to be severed from the
Agreement.
10. INTEGRATION
This Agreement constitutes the entire understanding of the parties, and
revokes and supersedes all prior agreements between the parties and is
intended as a final expression of their Agreement. It shall not be modified
or amended except in writing signed by the parties hereto and specifically
referring to this Agreement. This Agreement shall take precedence over any
other documents which may conflict with this Agreement.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have each caused to be affixed hereto its or his/her hand and seal
the day indicated.
[Name of Subscriber] Mark A. DiSalvo (Seller)
By: _______________________________ __________________________________
Title: _____________________________
Date: _____________________________ Date: _____________________________
ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
IN WITNESS WHEREOF, the Subscriber has executed this Subscription Agreement
on this _____ day of _______________, 2001.
_______ Shares for a purchase price of $____________ or $.10 per Share.
Manner in which title is to be held (Please Check One):
1. _____ Individual Plan
2. _____ Joint Tenants with Right of Survivorship
3. _____ Community Property Under the Uniform Gift to Minors Act
4. _____ Tenants in Common
5. _____ Corporation/Partnership
6. _____ IRA
7. _____ Trust/Estate/Pension or Profit Sharing Date Opened: ________
8. _____ As a Custodian for _____________
9. _____ Married with Separate Property
10. _____ Keogh
EXECUTION BY SUBSCRIBER WHO IS A NATURAL PERSON
Exact Name in Which Title is to be Held
(Signature)
(If Joint Tenant or Tenants in Common, both persons must sign and this page
must contain all information for both persons).
___________________________________________________________________________
Name (Please Print)
___________________________________________________________________________
Residence: Number and Street
___________________________________________________________________________
City State Zip Code
___________________________________________________________________________
Telephone Number
___________________________________________________________________________
Social Security Number
ACCEPTED this ____ day of _____________, 2001, on behalf of the Company
By: __________________________________
EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation, Partnership, Limited Liability Company, Trust, Etc.)
___________________________________________________________________________
Name of Entity (Please Print)
___________________________________________________________________________
Type of Entity (Partnership, Corporation, Limited Liability Company, Trust
Estate, Other)
___________________________________________________________________________
Address of Principal Office of Entity
The Subscriber represents and warrants that (i) he or she is the
______________ (Insert Title) of the above entity, (ii) he or she has full
power and authority to execute this Subscription Agreement on behalf of the
above entity and (iii) investment in the Company by the above entity is not
prohibited by the governing documents of the entity.
SUBSCRIBER
By: ____________________________________
Name: __________________________________
Title: _________________________________
Attest: ________________________________
(If Entity is a Corporation)
___________________________________________________________________________
Address
___________________________________________________________________________
Telephone Number
___________________________________________________________________________
Taxpayer Identification Number
ACCEPTED this ____ day of ___________, 2001
By: __________________________________