EXHIBIT 10.6
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THE FAMILY POST, INC.
STOCK SUBSCRIPTION AGREEMENT
1. SUBSCRIPTION: The undersigned (the "Subscriber") hereby irrevocably
subscribes ($X) for (X) shares (the "Shares") of the Common Stock of The Family
Post, Inc., a California corporation (the "Company"), which subscription, when
and if accepted by the Company, will constitute the payment by the Subscriber of
the purchase price for the Shares, relating to the Company and its proposed
business.
2. REPRESENTATIONS. WARRANTIES AND AGREEMENTS BY SUBSCRIBER: The Subscriber
hereby represents, warrants and agrees as follows:
(a) The Shares are being purchased by the Subscriber and not
by any other person, with the Subscriber's own funds and not with the
funds of any other person, and for the account of the Subscriber, not
as a nominee or agent and not for the account of any other person. On
acceptance of this Subscription Agreement by the Company, no other
person will have any interest, beneficial or otherwise, in the Shares.
The Subscriber is not obligated to transfer Shares to any other person
nor does the Subscriber have any agreement or understanding to do so.
The Subscriber is purchasing the Shares for investment for an
indefinite period not with a view to the sale or distribution of any
part or all thereof by public or private sale or other disposition The
Subscriber has no intention of selling, granting any participation in
or otherwise distributing or disposing of any Shares. The Subscriber
does not intend to subdivide the Subscriber's purchase of Shares with
any person.
(b) The Subscriber has been advised that the Shares have not
been registered under the Securities Act of 1933, as amended (the
"Act"), or qualified under the California Corporate Securities Law of
1968, as amended (the "Law"), on the ground, among others, that no
distribution or public offering of the Shares is to be effected and the
Shares will be issued by the Company in connection with a transaction
that does not involve any public offering within the meaning of section
4(2) of the Act or section 25012(f) of the Law, under the respective
rules and regulations of the Securities and Exchange Commission and the
California Commissioner of Corporations there under. The Subscriber
understands that the Company is relying in part on the Subscriber's
representations as set forth herein for purposes of claiming such
exemptions and that the basis for such exemptions may not he present
if, notwithstanding the Subscriber's representations, the Subscriber
has in mind merely acquiring Shares for resale on the occurrence or
nonoccurrence of some predetermined event. The Subscriber has no such
intention.
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(c) The Subscriber, either alone or with the Subscriber's
professional advisers who are unaffiliated with, have no equity
interest in and are not compensated by the Company or any affiliate or
selling agent of the Company, directly or indirectly, has such
knowledge and experience in financial and business matters that the
Subscriber is capable of evaluating the merits and risks of an
investment in Shares and has the capacity to protect the Subscriber's
own interests in connection with the Subscriber's proposed investment
in Shares.
Either:
(i) The Subscriber has a preexisting personal or
business relationship with one or more of the founding
shareholders and directors of the Company who control the
Company, consisting of personal or business contacts of a
nature and duration sufficient to enable the Subscriber, as a
reasonably prudent investor, to be aware of the character,
business acumen and general business and financial
circumstances of the persons with whom such relationship
exists; or
(ii) By reason of the Subscriber's business and
financial experience or the business or financial experience
of the Subscriber's professional advisers who are unaffiliated
with and who are not compensated by the Company or any
affiliate or selling agent of the Company, directly or
indirectly, the Subscriber has the capacity to protect the
Subscriber's own interests in connection with the Subscriber's
purchase of Shares; or
(iii) The Subscriber is an excluded purchaser as
provided by section 25102(f) of the Law and section 260.102.13
of the California Code of Regulations promulgated under the
Law and has so indicated such status by marking one of the
categories of "accredited investor" on the Subscriber's
Offering Questionnaire attached hereto as Appendix 1.
(d) The Subscriber either has previously furnished to the
Company a completed and signed Offering Questionnaire or has completed
and signed the Offering Questionnaire attached hereto as Appendix 1.
The information in the Subscriber's most recently completed and signed
Offering Questionnaire previously delivered or being delivered to the
Company, which is incorporated herein by reference, is true, correct
and complete in all respects as of the date hereof.
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(e) The Subscriber acknowledges that the Subscriber has been
furnished with such financial and other information concerning the
Company, the directors and officers of the Company and the business and
proposed business of the Company as the Subscriber considers necessary
in connection with the Subscriber's investment in Shares. The
Subscriber has carefully reviewed aforementioned information of the
Company and is thoroughly familiar with the proposed business,
operations, properties and financial condition of the Company and has
discussed with officers of the Company any questions the Subscriber may
have had with respect thereto. The Subscriber understands:
(i) The risks involved in this offering, including
the speculative nature of the investment;
(ii) The financial hazards involved in this offering,
including the risk of losing the Subscriber's entire
investment;
(iii) The lack of liquidity and restrictions on
transfers of Shares; and
(iv) The tax consequences of this investment.
The Subscriber has consulted with the Subscriber's own legal,
accounting, tax, investment and other advisers with respect to the tax
treatment of an investment by the Subscriber in Shares and the merits
and risks of an investment in Shares.
(f) If the Subscriber is an individual, the Subscriber is a
citizen of the United States over 21 years of age; and if the
Subscriber is an unincorporated association, all of its members are
such citizens of such age. If the Subscriber is a corporation,
partnership, trust or other entity, the Subscriber was not formed for
the purpose of investing in Shares and has or will have other
substantial business or investments.
(g) The Subscriber, if not an individual, is empowered and
duly authorized to enter into this Subscription Agreement under any
governing document, partnership agreement, trust instrument, pension
plan, charter, certificate of incorporation, bylaw provision or the
like; this Subscription Agreement constitutes a valid and binding
agreement of the Subscriber enforceable against the Subscriber in
accordance with its terms; and the person signing this Subscription
Agreement on behalf of the Subscriber is empowered and duly authorized
to do so by the governing document or trust instrument, pension plan,
charter, certificate of incorporation, bylaw provision, board of
directors or stockholder resolution, or the like.
3. AGREEMENT TO REFRAIN FROM RESALES: Without in any way limiting the
representation and warranties herein, the Subscriber further agrees that the
Subscriber shall in no event pledge, hypothecate, sell, transfer, assign or
otherwise dispose of any Shares, nor shall the Subscriber receive any
consideration for Shares from any person, unless and until prior to any proposed
pledge, hypothecation, sale, transfer, assignment or other disposition:
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(a) A registration statement on Form S-I under the Act (or any
other form appropriate for the purpose under the Act or any form
replacing such form) with respect to the Shares proposed to be so
disposed of shall be then effective and such disposition shall have
been appropriately qualified in accordance with the Law and any other
applicable securities law; or
(b) (i) The Subscriber shall have furnished the Company with a
detailed explanation of the proposed disposition, (ii) the Subscriber
shall have furnished the Company with an opinion of the Subscriber's
counsel in form and substance satisfactory to the Company to the effect
that such disposition will not require registration of such Shares
under the Act or qualification of such Shares under the Law or any
other securities law, and (iii) counsel for the Company shall have
concurred in such opinion and the Company shall have advised the
Subscriber of such concurrence.
4. CERTIFICATES REPRESENTING SHARES TO BE LEGENDED: The Subscriber understands
and agrees that any certificate representing Shares or relating to Shares may
bear such legends as the Company may consider necessary or advisable to
facilitate compliance with the Act, the Law and any other securities law,
including without limitation legends stating that the Shares have not been
registered under the Act or qualified under the Law and setting forth the
limitations on dispositions imposed hereby.
5. SHARES WILL BE RESTRICTED SECURITIES: The Subscriber understands that the
Shares will be "restricted securities" as that term is defined in Rule 144 under
the Act and, accordingly, that the Shares must be held indefinitely unless they
are subsequently registered under the Act and qualified under the Law and any
other applicable securities law or exemptions from such registration and
qualification as are available. The Subscriber understands that the Company is
under no obligation so to register Shares under the Act, to qualify Shares under
any securities law, or to comply with Regulation A or any other exemption under
the Act, the Law or any other law. The Subscriber understands that Rule 144 is
not available for any sale of Shares and will not be available for at least
several years.
6. COMPANY MAY REFUSE TO TRANSFER: Notwithstanding the foregoing, if, in the
opinion of counsel for the Company, the Subscriber has acted in a manner
inconsistent with the representations and warranties in this Subscription
Agreement. The Company may refuse to transfer the Subscriber's Shares until such
time as counsel for the Company is of the opinion that such transfer will not
require registration of Shares under the Act or qualification of Shares under
the Law or any other securities law. The Subscriber understands and agrees that
the Company may refuse to acknowledge or permit any disposition of Shares that
is not in all respects in compliance with this Subscription Agreement and that
the Company intends to make an appropriate notation in its records to that
effect.
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7. INDEMNIFICATION: The Subscriber hereby agrees to indemnify and defend the
Company and its directors and officers and hold them harmless from and against
any and all liability, damage, cost or expense incurred on account of or arising
out of:
(a) Any breach of or inaccuracy in the Subscriber's
representations, warranties or agreements herein;
(b) Any disposition of any Shares contrary to any of the
Subscriber's representations, warranties or agreements herein;
(c) Any action, suit or proceeding based on (i) a claim that
any of said representations, warranties or agreements were inaccurate
or misleading or otherwise cause for obtaining damages or redress form
the Company or any director or officer of the Company under the Act, or
(ii) any disposition of any Shares.
8. SUCCESSORS: The representations, warranties and agreements contained in this
Subscription Agreement shall be binding on the Subscriber's successors, assigns,
heirs and legal representatives and shall inure to the benefit of the respective
successors and assigns of' the Company and its directors and officers.
9. STOCK OPTIONS As an added inducement to the Subscriber for the purchase of
the Shares under this Agreement, the Company agrees to grant certain additional
stock purchase rights to The Subscriber, in accordance with the Stock Option
Agreement attached hereto as Exhibit A, which Exhibit A shall be incorporated
into this Agreement by reference.
Dated: , 200
SUBSCRIBER
____________________________
(Name) ADDRESS:
COMPANY: THE FAMILY POST, INC
By: _______________________________________
Michael A. Sawtell, Chief Exec. Officer
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EXHIBIT A
STOCK OPTION AGREEMENT
Agreement made as of the day of ,200 , between The Family Post, Inc., a
California corporation (the "Company"), and ("Grantee").
i. Grant of Option. The Company hereby grants to Grantee, as
of the date of grant specified above, a nonqualified option to purchase
(X) shares of common stock, no par value, (the "Common Stock"), of the
Company (which number of shares may be adjusted pursuant to Paragraph v
below) at ($.X) per share, subject to the terms and conditions set
forth herein.
ii. Exercise of Options. Subject to the earlier termination of
the option as provided herein, the option may be exercised as provided
for in this paragraph and in paragraph vii, herein. Unless a Change in
Control (as defined in Section v) occurs, such option shall not be
exercisable for more than twenty five percent (25%) of the aggregate
number of shares covered by this option multiplied by the number of
full nine month periods of employment from the date of grant thereof to
the date of such exercise, in accordance with the following schedule.
Cumulative Percentage
Full Nine Month Periods of Grant % of Shares That May Be Exercisable
1 but less than 2 25%
2 but less than 3 50%
3 but less than 4 75%
4 or more 100%
An option may not be exercised for a fraction of a share of
Common Stock
iii. Conditions to Exercise. The option may not be exercised
by Grantee unless all of the following conditions are met:
(i) Legal counsel for the Company must be satisfied
at the time of exercise that the issuance of shares of Common
Stock upon exercise will be in compliance with the Securities
Act of 1933, as amended (the "Act") and applicable United
States federal, state, local and foreign laws;
(ii) Grantee must pay in United States dollars at the
time of exercise the full purchase price for the shares of
Common Stock being acquired hereunder.
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(iii) Grantee must, at all times during the period
beginning with the grant date of the option and ending on the
date of such exercise, have been retained by the Company as an
independent contractor
iv. Transferability. The option may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of by Grantee,
and may be exercised only the Grantee during his lifetime.
v. Adjustments. In the event of any change in the number of
shares of Common Stock outstanding by reason of any stock split, stock
dividend, split-up, split-off, spin-off, recapitalization, merger,
consolidation, rights offering, reorganization, combination or exchange
of shares, sale by the Company of all or part of its assets,
distribution to shareholders other than a normal cash dividend, or
other extraordinary or unusual event occurring after the grant date
specified above and prior to its exercise in full, the number and kind
of shares of Common Stock or other property for which the option may
then be exercised and the option price per share may or may not be
adjusted so as to reflect such change, all as determined by the Company
in its sole discretion. In the event of the proposed dissolution or
liquidation of the Company, the option shall terminate immediately
prior to the consummation of such proposed action, unless otherwise
provided by the Company. In the event of a Change in Control, as
defined herein, restrictions on the option shall lapse to allow Grantee
to be immediately vested in the right to purchase the amount of X (X)
shares in total, or, if smaller, the amount of shares required to bring
Grantee's ownership up to a total of (X) shares if there shall have
been prior purchases. This special vesting provision shall be effective
immediately prior to the effective date of the Change of Control. The
option shall terminate upon consummation of the Change in Control,
unless otherwise provided by the Company. For purposes of this
Agreement, a Change in Control shall mean a sale of all or
substantially all of the assets of the Company, or the merger of the
Company into another corporation.
vi. Income Tax Consequences. The Company and Grantee
understand that the option granted herein is a "Non-Qualified Stock
Option" pursuant to the Internal Revenue Code, and, as such, Grantee
shall be deemed to have received compensation, and shall be taxed at
ordinary income rates at the time the option is exercised for the
difference between the purchase price of the shares and the fair market
value (as defined herein) of those shares at the time of purchase.
Grantee acknowledges that he will be liable for the tax on this
transaction, and that the Company shall add such compensation to the
Form 1099 to be issued to the Grantee at the end of each year. For
purposes of determining the compensation element of the purchase, "Fair
Market Value" shall mean, as of any specified date, the average of the
reported high and low sales prices of the Common Stock on the stock
exchange composite tape on that date, or if no sales prices are
reported on that date, on the last preceding date on which such prices
of the Common Stock are so reported. If the Common Stock is traded
over-the-counter at the time a determination of its fair market value
is required to be made hereunder, its fair market value shall be deemed
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to be equal to the average between the reported high and low or closing
bid and asked prices of the Common Stock on the most recent date of
which the Common Stock was publicly traded. In the event the Common
Stock is not publicly traded at the time a determination of this value
is required to be made hereunder, the determination of its fair market
value shall be made by the Company in such manner as it deems
appropriate.
vii. Method of Exercise. This Option shall be exercisable by
written Notice to the Company. The Notice must state the number of
Shares for which the Option is being exercised, and such other
representations and agreements with respect to such shares of Common
Stock as may be required by the Company as may be necessary in order
for the Company to comply with applicable laws, rules and regulations.
The Notice must be signed by the Optionee and shall be delivered in
person or by certified mail to the Secretary of the Company. The Notice
must be accompanied by payment of the exercise price. This Option shall
be deemed to be exercised upon receipt by the Company of such written
Notice accompanied by payment of the exercise price.
viii. Administration. Any action taken or decision made by the
Company's board of directors or the compensation committee of the board
or their delegates arising out of or in connection with the
construction, administration, interpretation or effect of the Agreement
shall lie within its sole and absolute discretion, as the case may be,
and shall be final, conclusive and binding on Grantee and all persons
claiming under or through Grantee.
ix. No Rights as Stockholder. Unless and until a certificate
or certificates representing such shares of Common Stock shall have
been issued to Grantee, Grantee shall not be or have any of the rights
or privileges of a stockholder of the Company with respect to shares of
Common Stock acquirable upon exercise of the option. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such stock certificate
is issued to Grantee.
x. Investment Representation. Grantee hereby acknowledges that
the shares of Common Stock which Grantee may acquire by exercising the
option shall be acquired for investment without a view to distribution,
within the meaning of the Act, and shall not be sold, transferred,
assigned, pledged or hypothecated in any manner without consent of the
Company
xi. Rights of Participants. Neither this Agreement nor the
grant of options creates any rights in Grantee to continue to be
retained as an independent contractor and the Company shall have no
liability for terminating its relationship with the Grantee.
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xii. Notices. Any notice hereunder to the Company shall be
addressed to , the Company at the Company's last known address of
record, and any notice hereunder to Grantee shall be addressed to
Grantee at Grantee's last address on the records of the Company,
subject to the right of either party to designate at any time hereafter
in writing some other address. Any notice shall be deemed to have been
duly given when delivered personally, by facsimile (receipt verified)
or enclosed in a properly sealed envelope, addressed as set forth
above, and deposited (with first class postage prepaid) in the United
States mail.
xiii Counterparts. This Agreement may be executed in one or
several counterparts, each of which shall constitute one and the same
instrument.
xiv. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of any successors to the Company and all persons
lawfully claiming under Grantee.
xv. Governing Law. The validity, construction, interpretation,
administration and effect of this Agreement, shall be governed by the
substantive laws, but not the choice of law rules, of the State of
California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
COMPANY GRANTEE
THE FAMILY POST, INC.
A California corporation
By: ________________________ _______________________
Michael Sawtell, CEO (Name)
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THE FAMILY POST, INC.
AMENDED AND RESTATED STOCK SUBSCRIPTION AGREEMENT
Reference is made to the Subscription Agreement dated as of , 200 (the
"Subscription Agreement") between the undersigned ("Subscriber") and The Family
Post, Inc., a California corporation ("Family Post" or the "Company"), with
respect to the prior subscription for the purchase of ______________ shares of
common stock of Family Post ("Common Stock") and, in some instances, options to
purchase Common Stock ("Options") for a purchase price of $___________. This
Amended and Restated Subscription Agreement supersedes the Subscription
Agreement in its entirety. Any Options previously issued to Subscriber as
consideration for and in connection with the Subscription Agreement are hereby
cancelled in their entirety and are due for return to the Family Post as voided.
As consideration for prior payment by Subscriber and agreeing to the
cancellation of the Options (as applicable), and entering into this Amended and
Restated Subscription Agreement, the Family Post hereby reduces the price per
share of the Subscription Agreement investment to $_____ per share, and upon
acceptance of this Amended and Restated Stock Subscription Agreement by Family
Post, will hereby issue ________ true-up shares of Common Stock to the
Subscriber. Subscriber will retain the shares issued previously under the
Subscription Agreement (not the Options however) and owes no money to the Family
Post under this Amended and Restated Subscription Agreement.
THEREFORE, Subscriber agrees as follows:
1. SUBSCRIPTION: The Subscriber hereby irrevocably subscribes to an
aggregate of _____________ (___________) shares ("Shares") of the Common Stock
of the Family Post for payment already made under the Subscription Agreement.
Subscriber agrees that any Options previously issued to Subscriber as
consideration for and in connection with the Subscription Agreement are hereby
cancelled in their entirety and are due for return to the Family Post as voided.
2. REPRESENTATIONS. WARRANTIES AND AGREEMENTS BY SUBSCRIBER: The
Subscriber hereby represents warrants and agrees as follows:
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(a) The Shares are being purchased by the Subscriber and not
by any other person, with the Subscriber's own funds and not with the
funds of any other person, and for the account of the Subscriber, not
as a nominee or agent and not for the account of any other person. On
acceptance of this Subscription Agreement by the Company, no other
person will have any interest, beneficial or otherwise, in the Shares.
The Subscriber is not obligated to transfer Shares to any other person
nor does the Subscriber have any agreement or understanding to do so.
The Subscriber is purchasing the Shares for investment for an
indefinite period not with a view to the sale or distribution of any
part or all thereof by public or private sale or other disposition The
Subscriber has no intention of selling, granting any participation in
or otherwise distributing or disposing of any Shares. The Subscriber
does not intend to subdivide the Subscriber's purchase of Shares with
any person.
(b) The Subscriber has been advised that the Shares have not
been registered under the Securities Act of 1933, as amended (the
"Act"), or qualified under the California Corporate Securities Law of
1968, as amended (the "Law"), on the ground, among others, that no
distribution or public offering of the Shares is to be effected and the
Shares will be issued by the Company in connection with a transaction
that does not involve any public offering within the meaning of section
4(2) of the Act or section 25012(f) of the Law, under the respective
rules and regulations of the Securities and Exchange Commission and the
California Commissioner of Corporations thereunder. The Subscriber
understands that the Company is relying in part on the Subscriber's
representations as set forth herein for purposes of claiming such
exemptions and that the basis for such exemptions may not he present
if, notwithstanding the Subscriber's representations, the Subscriber
has in mind merely acquiring Shares for resale on the occurrence or
nonoccurrence of some predetermined event. The Subscriber has no such
intention.
(c) The Subscriber, either alone or with the Subscriber's
professional advisers who are unaffiliated with, have no equity
interest in and are not compensated by the Company or any affiliate or
selling agent of the Company, directly or indirectly, has such
knowledge and experience in financial and business matters that the
Subscriber is capable of evaluating the merits and risks of an
investment in Shares and has the capacity to protect the Subscriber's
own interests in connection with the Subscriber's proposed investment
in Shares.
Either:
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(i) The Subscriber has a preexisting personal or
business relationship with one or more of the founding
shareholders and directors of the Company who control the
Company, consisting of personal or business contacts of a
nature and duration sufficient to enable the Subscriber, as a
reasonably prudent investor, to be aware of the character,
business acumen and general business and financial
circumstances of the persons with whom such relationship
exists; or
(ii) By reason of the Subscriber's business and
financial experience or the business or financial experience
of the Subscriber's professional advisers who are unaffiliated
with and who are not compensated by the Company or any
affiliate or selling agent of the Company, directly or
indirectly, the Subscriber has the capacity to protect the
Subscriber's own interests in connection with the Subscriber's
purchase of Shares; or
(iii) The Subscriber is an excluded purchaser as
provided by section 25102(f) of the Law and section 260.102.13
of the California Code of Regulations promulgated under the
Law and has so indicated such status by marking one of the
categories of "accredited investor" on the Subscriber's
Offering Questionnaire attached hereto as Annex I.
(d) The Subscriber either has previously furnished to the
Company a completed and signed Offering Questionnaire. The information
in the Subscriber's most recently completed and signed Offering
Questionnaire previously delivered or being delivered to the Company,
which is incorporated herein by reference, is true, correct and
complete in all respects as of the date hereof.
(e) The Subscriber acknowledges that the Subscriber has been
furnished with such financial and other information concerning the
Company, the directors and officers of the Company and the business and
proposed business of the Company as the Subscriber considers necessary
in connection with the Subscriber's investment in Shares. The
Subscriber has carefully reviewed aforementioned information of the
Company and is thoroughly familiar with the proposed business,
operations, properties and financial condition of the Company and has
discussed with officers of the Company any questions the Subscriber may
have had with respect thereto. The Subscriber understands:
(i) The risks involved in this offering, including
the speculative nature of the investment;
(ii) The financial hazards involved in this offering,
including the risk of losing the Subscriber's entire
investment;
(iii) The lack of liquidity and restrictions on
transfers of Shares; and
(iv) The tax consequences of this investment.
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The Subscriber has consulted with the Subscriber's own legal,
accounting, tax, investment and other advisers with respect to the tax
treatment of an investment by the Subscriber in Shares and the merits
and risks of an investment in Shares.
(f) If the Subscriber is an individual, the Subscriber is a
citizen of the ' United States over 21 years of age; and if the
Subscriber is an unincorporated association, all of its members are
such citizens of such age. If the Subscriber is a corporation,
partnership, trust or other entity, the Subscriber was not formed for
the purpose of investing in Shares and has or will have other
substantial business or investments.
(g) The Subscriber, if not an individual, is empowered and
duly authorized to enter into this Subscription Agreement under any
governing document, partnership agreement, trust instrument, pension
plan, charter, certificate of incorporation, bylaw provision or the
like; this Subscription Agreement constitutes a valid and binding
agreement of the Subscriber enforceable against the Subscriber in
accordance with its terms; and the person signing this Subscription
Agreement on behalf of the Subscriber is empowered and duly authorized
to do so by the governing document or trust instrument, pension plan,
charter, certificate of incorporation, bylaw provision, board of
directors or stockholder resolution, or the like.
3. AGREEMENT TO REFRAIN FROM RESALES: Without in any way limiting the
representation and warranties herein, the Subscriber further agrees that the
Subscriber shall in no event pledge, hypothecate, sell, transfer, assign or
otherwise dispose of any Shares, nor shall the Subscriber receive any
consideration for Shares from any person, unless and until prior to any proposed
pledge, hypothecation, sale, transfer, assignment or other disposition:
(a) A registration statement on Form S-I under the Act (or any
other form appropriate for the purpose under the Act or any form
replacing such form) with respect to the Shares proposed to be so
disposed of shall be then effective and such disposition shall have
been appropriately qualified in accordance with the Law and any other
applicable securities law; or
(b) (i) The Subscriber shall have furnished the Company with a
detailed explanation of the proposed disposition, (ii) the Subscriber
shall have furnished the Company with an opinion of the Subscriber's
counsel in form and substance satisfactory to the Company to the effect
that such disposition will not require registration of such Shares
under the Act or qualification of such Shares under the Law or any
other securities law, and (iii) counsel for the Company shall have
concurred in such opinion and the Company shall have advised the
Subscriber of such concurrence.
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4. CERTIFICATES REPRESENTING SHARES TO BE LEGENDED: The Subscriber
understands and agrees that any certificate representing Shares or relating to
Shares may bear such legends as the Company may consider necessary or advisable
to facilitate compliance with the Act, the Law and any other securities law,
including without limitation legends stating that the Shares have not been
registered under the Act or qualified under the Law and setting forth the
limitations on dispositions imposed hereby.
5. SHARES WILL BE RESTRICTED SECURITIES: The Subscriber understands
that the Shares will be "restricted securities" as that term is defined in Rule
144 under the Act and, accordingly, that the Shares must be held indefinitely
unless they are subsequently registered under the Act and qualified under the
Law and any other applicable securities law or exemptions from such registration
and qualification as are available. The Subscriber understands that the Company
is under no obligation so to register Shares under the Act, to qualify Shares
under any securities law, or to comply with Regulation A or any other exemption
under the Act, the Law or any other law. The Subscriber understands that Rule
144 is not available for any sale of Shares and will not be available for at
least several years.
6. COMPANY MAY REFUSE TO TRANSFER: Notwithstanding the foregoing, if,
in the opinion of counsel for the Company, the Subscriber has acted in a manner
inconsistent with the representations and warranties in this Subscription
Agreement. The Company may refuse to transfer the Subscriber's Shares until such
time as counsel for the Company is of the opinion that such transfer will not
require registration of Shares under the Act or qualification of Shares under
the Law or any other securities law. The Subscriber understands and agrees that
the Company may refuse to acknowledge or permit any disposition of Shares that
is not in all respects in compliance with this Subscription Agreement and that
the Company intends to make an appropriate notation in its records to that
effect.
7. INDEMNIFICATION: The Subscriber hereby agrees to indemnify and
defend the Company and its directors and officers and hold them harmless from
and against any and all liability, damage, cost or expense incurred on account
of or arising out of:
(a) Any breach of or inaccuracy in the Subscriber's
representations, warranties or agreements herein;
(b) Any disposition of any Shares contrary to any of the
Subscriber's representations, warranties or agreements herein;
(c) Any action, suit or proceeding based on (i) a claim that
any of said representations, warranties or agreements were inaccurate
or misleading or otherwise cause for obtaining damages or redress form
the Company or any director or officer of the Company under the Act, or
(ii) any disposition of any Shares.
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8. SUCCESSORS: The representations, warranties and agreements contained
in this Subscription Agreement shall be binding on the Subscriber's successors,
assigns, heirs and legal representatives and shall inure to the benefit of the
respective successors and assigns of' the Company and its directors and
officers.
SIGNATURES
Executed this 4th day of January, 2007.
___________________________________________________
Print exact name(s) in which the Shares are to be held
The undersigned hereby represents he has read this entire Amended and Restated
Subscription Agreement.
Correspondence Address
_______________________________ ______________________________________
Signature Name
_______________________________ ______________________________________
Name(s) Typed or Printed Street Address
______________________________________
City, State and Zip Code
______________________________________
U.S. Tax Identification or Social Security
Number (if any)
______________________________________
Telephone Number
ACCEPTANCE
This Amended and Restated Subscription Agreement is accepted as of January 4,
2007.
The Family Post, Inc.,
a California corporation
By:
Name: Michael Sawtell
Title: CEO
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