Exhibit 10.11
THIS PRIVATE PLACEMENT 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 PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(THE "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 AGREEMENT
(Foreign/Overseas Subscribers)
TO: e-commerce group, inc. (the "Company")
3675 Pecos-McLeod, Suite 1400
Las Vegas, Nevada 89121-3881
Issuance of Shares
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WHEREAS:
A. The Company has received corporate consulting, assistance with the
development of the Company, structuring assistance, and financial services (the
"Services") from S.C. Management Ltd., a Bahamian corporation (the
"Subscriber");
B. The Company has agreed to issue 300,000 common shares in the capital
of the Company (the "Shares") to the Subscriber in consideration for the
Services and acknowledges that the Services have been received; and
C. The Company and the Subscriber have entered into a registration rights
agreement dated as of the date hereof in regards to registration of the Shares.
NOW THEREFORE the parties agree as follows:
1. Subscription
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1.1 The Subscriber hereby irrevocably subscribes for the Shares (such
subscription and agreement to purchase being the "Subscription"), which Shares
have been agreed to be paid in consideration for the Services provided to the
Company, on the basis of the representations and warranties and subject to the
terms and conditions set forth herein.
1.2 The Company hereby irrevocably agrees to issue to the Subscriber the
Shares, on the basis of the representations and warranties and subject to the
terms and conditions set forth herein.
1.3 Subject to the terms hereof, the Subscription will be effective upon
its acceptance by the Company.
2. Documents Required from Subscriber
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2.1 The Subscriber must complete, sign and return to the Company two (2)
executed copies of this Subscription Agreement.
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2.2 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, stock exchanges
and applicable law.
3. Closing
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3.1 Closing of the offering of the Shares (the "Closing") shall occur on
or before August 31, 2000, or on such other date as may be determined by the
Company (the "Closing Date").
4. Acknowledgements of Subscriber
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4.1 The Subscriber acknowledges and agrees that:
(a) none of the Shares have been registered under the 1933 Act, or under
any state securities or "blue sky" laws of any state of the United
States, and, unless so registered, may not be offered or sold in the
United States or, directly or indirectly, to U.S. Persons, as that
term is defined in Regulation S under the 1933 Act ("Regulation S"),
except in accordance with the provisions of Regulation S, 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;
(b) the Subscriber acknowledges that the Company has not undertaken, and
will have no obligation, to register any of the Shares under the 1933,
other than as described herein;
(c) the decision to execute this Subscription Agreement and subscribe for
the Shares agreed to be subscribed for 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 entirely
upon a review of any public information which has been filed by the
Company with the SEC in compliance, or intended compliance, with
applicable securities legislation. If the Company has presented a
business plan to the Subscriber, the Subscriber acknowledges that the
business plan may not be achieved or be achievable;
(d) by execution hereof the Subscriber has waived the need for the Company
to communicate its acceptance of the subscription for the Shares
pursuant to this Subscription Agreement;
(e) 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 or they may suffer as a result of
the Subscriber's failure to correctly complete this Subscription
Agreement;
(f) it 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 representation or
warranty of the Subscriber contained herein or in any 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;
(g) it has been advised to consult its own legal, tax and other advisors
with respect to the merits and risks of an investment in the Shares
and with respect to applicable resale restrictions and it is solely
responsible (and the Company is not in any way responsible) for
compliance with applicable resale restrictions;
(h) none of the Shares are listed on any stock exchange or automated
dealer quotation system and no representation has been made to the
Subscriber that any of the Shares will become listed on any stock
exchange or automated dealer quotation system, except the non-NASDAQ
Over the Counter Bulletin Board in the United States (the "OTCBB");
(i) it 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
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fractionalization thereof, in whole or in part, and no other person
has a direct or indirect beneficial interest in such Shares;
(j) none of the Shares 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 Restricted Period (as defined herein);
(k) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of the
Shares;
(l) the issuance 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;
(m) 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; and
(n) this Subscription Agreement is not enforceable by the Subscriber
unless it has been accepted by the Company.
5. Representations, Warranties and Covenants of the Subscriber
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5.1 The Subscriber hereby represents and warrants to and covenants with
the Company (which representations, warranties and covenants shall survive the
Closing) that:
(a) it is not a U.S. Person;
(b) it is not acquiring the Shares for the account or benefit of, directly
or indirectly, any U.S. Person;
(c) it is acquiring the Shares for investment only and not with a view to
resale or distribution and, in particular, it has no intention to
distribute either directly or indirectly any of the Shares in the
United States or to U.S. Persons;
(d) it 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;
(e) 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;
(f) 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 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;
(g) 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;
(h) it is not an underwriter of, or dealer in, the common shares of the
Company, nor is the Subscriber participating, pursuant to a
contractual agreement or otherwise, in the distribution of the Shares;
(i) it understands and agrees that none of the Shares have been registered
under the 1933 Act, or under any state securities or "blue sky" laws
of any state of the United States, and, unless so registered, may not
be offered or sold in the United States or, directly or indirectly, to
U.S. Persons except in accordance with the provisions of Regulation
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S, 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;
(j) it understands and agrees that offers and sales of any of the Shares
prior to the expiration of a period of one year after the date of
original issuance of the Shares (the "Restricted Period") shall only
be made in compliance with the safe harbor provisions set forth in
Regulation S, pursuant to the registration provisions of the 1933 Act
or an exemption therefrom, and that all offers and sales after the
Restricted Period shall be made only in compliance with the
registration provisions of the 1933 Act or an exemption therefrom;
(k) it understands and agrees not to engage in any hedging transactions
involving any of the Shares unless such transactions are in compliance
with the provisions of the 1933 Act;
(l) it understands and agrees that the Company will refuse to register any
transfer of the Shares 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 the
registration requirements of the 1933 Act;
(m) it (i) is able to fend for itself in the Subscription; (ii) has such
knowledge and experience in business matters as to be capable of
evaluating the merits and risks of its prospective investment in the
Shares; and (iii) has the ability to bear the economic risks of its
prospective investment and can afford the complete loss of such
investment;
(n) if it is acquiring the Shares as a fiduciary or agent for one or more
investor accounts, it has sole investment discretion with respect to
each such account and it has full power to make the foregoing
acknowledgments, representations and agreements on behalf of such
account;
(o) it understands and agrees that the Company and others will rely upon
the truth and accuracy of the acknowledgments, representations and
agreements contained in sections 4 and 5 hereof and agrees that if any
of such acknowledgments, representations and agreements are no longer
accurate or have been breached, it shall promptly notify the Company;
(p) it 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 Shares 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 Shares; 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;
(q) the Subscriber is not aware of any advertisement of any of the Shares;
(r) no person has made to the Subscriber any written or oral
representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the
Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares 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 Shares of
the Company on any stock exchange or automated dealer quotation
system, other than the OTCBB.
5.2 In this Subscription Agreement, the term "U.S. Person" shall have the
meaning ascribed thereto in Regulation S.
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6. Acknowledgement and Waiver
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6.1 The Subscriber has acknowledged that the decision to subscribe for the
Shares was solely made on the basis of publicly available 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.
7. Legending and Registration of Subject Shares
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7.1 The Subscriber hereby acknowledges that a legend may be placed on the
certificates representing any of the Shares to the effect that the Shares
represented by such certificates are subject to a hold period and may not be
traded until the expiry of such hold period except as permitted by applicable
securities legislation.
7.2 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.
8. Costs
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8.1 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.
9. Governing Law
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9.1 This Subscription Agreement is governed by the laws of the State of
Nevada and the federal laws of the United States applicable herein. 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
jurisdiction of the State of Nevada.
10. Survival
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10.1 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.
11. Assignment
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11.1 This Subscription Agreement is not transferable or assignable.
12. Execution
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12.1 The Company shall be entitled to rely on delivery by facsimile machine
of an executed copy of this Subscription Agreement and acceptance by the Company
of such facsimile copy shall be equally effective to create a valid and binding
agreement between the Subscriber and the Company in accordance with the terms
hereof.
13. Severability
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13.1 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.
14. Entire Agreement
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14.1 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
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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.
15. Notices
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15.1 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 3675 Pecos-
McLeod, Suite 1400, Las Vegas, Nevada, 89121-3881, Attention: The President.
16. Counterparts
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16.1 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.
IN WITNESS WHEREOF the Subscriber has duly executed this Subscription Agreement
as of the date first above mentioned.
DELIVERY INSTRUCTIONS
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1. Delivery - please deliver the certificates to:
___________________________________________________________________________
___________________________________________________________________________
2. Registration - registration of the certificates which are to be delivered
at closing should be made as follows:
___________________________________________________________________________
(name)
___________________________________________________________________________
(address)
3. The undersigned hereby acknowledges that it will deliver to the Company all
such additional completed forms in respect of the Subscriber's purchase of
the Shares as may be required for filing with the appropriate securities
commissions and regulatory authorities.
____________________________________________________
(Name of Subscriber - Please type or print)
____________________________________________________
(Signature and, if applicable, Office)
____________________________________________________
(Address of Subscriber)
____________________________________________________
(City, State or Province, Postal Code of Subscriber)
____________________________________________________
(Country of Subscriber)
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A C C E P T A N C E
The above-mentioned Subscription Agreement in respect of the Shares is hereby
accepted by e-commerce group, inc..
DATED at London, U.K., the 10th day of August, 2000.
e-commerce group, inc.
Per: /s/ Tony Arnold
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Authorized Signatory