EXHIBIT 10.14
THE BUCK A DAY COMPANY INC.
SUBSCRIPTION AGREEMENT
("Agreement")
THE SECURITIES OFFERED HEREBY IN THE FORM OF SHARES OF THE BUCK A DAY COMPANY
INC. HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS. THE SHARES CANNOT BE SOLD, TRANSFERRED, ASSIGNED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE RESTRICTIONS ON
TRANSFERABILITY CONTAINED IN THIS AGREEMENT AND APPLICABLE FEDERAL AND STATE
SECURITIES LAWS AND WILL NOT BE TRANSFERRED OF RECORD OR BENEFICIALLY EXCEPT IN
COMPLIANCE WITH SUCH AGREEMENTS AND LAWS.
1.
PURCHASE OF SHARES
1. Subscription and Purchase Price. The undersigned ("Subscriber") hereby
subscribes to _____________ shares of common stock, no par value
("Shares") of The Buck A Day Company Inc. ("Company"), a Canadian company
organized under the laws of the Province of Ontario. The purchase price
for the shares shall be $________________ USD in the aggregate. Such
consideration shall be paid upon the execution of this Agreement.
2. Certificate. A certificate or certificates shall be issued by Company for
the number of Shares subscribed to pursuant to this Agreement.
2.
REPRESENTATIONS AND WARRANTIES OF COMPANY
Company hereby represents and warrants to Subscriber as follows:
1. Organization of Company. Company is duly organized, validly existing and
in good standing under the laws of the Province of Ontario.
2. Authorization. Company has all necessary corporate power and authority to
enter into this Agreement, and has taken all necessary corporate action to
consummate the transactions contemplated hereby and to perform its
obligation, hereunder. This Agreement has been duly executed and delivered
by Company and are legally valid and binding obligations of Company
enforceable against it in accordance with their terms, subject to the
effects of bankruptcy, insolvency, reorganization or other laws to or
affecting the rights of creditors and general principles of equity.
3. No Broker. Company has not entered into nor will enter into, or has caused
or will cause Subscriber to enter, into any contract, agreement,
arrangement, or understanding with any person or firm which will result in
the obligation of Subscriber to pay any finder's fee, brokerage commission
or similar payment in connection with the transactions contemplated
hereby.
article iii
registration rights
3.01 Incidental Registration. If Company at any time subsequent to
the date hereof, proposes to register any of its securities under the Securities
Act of 1933, as amended ("1933 Act") on any forms other than Form S-4, Form S-8,
or any similar form then in effect, it shall give written notice to Subscriber
and
Company shall use its best efforts to cause all such Shares to be included under
the proposed registration for disposition (in accordance with the proposed
methods thereof, as aforesaid) by the prospective seller or sellers of the
shares of Common Stock so registered. Company shall use its best efforts to
maintain the effectiveness of such registration statement for a period of one
year ("Registration Period").
3.02. Related Obligations.
(a) Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus(es) used in connection with the Registration
Statement, which prospectus(es) are to be filed pursuant to Rule 424 promulgated
under the 1933 Act, as may be necessary to keep the Registration Statement(s)
effective at all times during such period, and, comply with the provisions of
the 1933 Act with respect to the disposition of all shares of Company covered by
the Registration Statement. Without limiting the generality of the foregoing, as
promptly as practicable after becoming aware of such event, Company shall notify
Subscriber in writing of the happening of any event, of which Company has
knowledge, as a result of which the prospectus included in a Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and promptly prepare a supplement or amendment to the
Registration Statement to correct such untrue statement or omission, and deliver
one (1) copy of such supplement or amendment to the Subscriber. Company shall
also promptly notify Subscriber (i) when a prospectus or any prospectus
supplement or post-effective amendment has been filed, and when a Registration
Statement or any post-effective amendment has become effective (ii) of any
request by the SEC for amendments or supplements to a Registration Statement or
related prospectus or related information, (iii) of Company's reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate.
(b) Company shall use its best efforts to prevent the issuance of
any stop order or other suspension of effectiveness of a Registration Statement,
or the suspension of the qualification of any of the Shares for sale in any
jurisdiction and, if such an order or suspension is issued, to obtain the
withdrawal of such order or suspension at the earliest possible moment and to
notify Subscriber of the issuance of such order and the resolution thereof or
its receipt of actual notice of the initiation or threat of any proceeding for
such purpose.
(c) Company shall hold in confidence and not make any disclosure of
information concerning Subscriber provided to the Company unless (i) disclosure
of such information is necessary to comply with federal or state securities
laws, (ii) the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this or any other agreement.
Company agrees that it shall, upon learning that disclosure of such information
concerning Subscriber is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt written notice to
Subscriber and allow Subscriber, at his expense, to undertake appropriate action
to prevent disclosure of, or to obtain a protective order for, such information.
(d) Company shall use reasonable efforts to (i) register and qualify
the Shares covered by a registration statement filed pursuant to this Article
III under such other securities or "blue sky" laws of the State of New York as
well as any other states Company deems appropriate, (ii) prepare and file in
such jurisdiction, such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration Period, (iii) take
such other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and (iv)
take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided, however, that
the Company shall not be required in connection therewith or as a condition
thereto to (a) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section, (b) subject itself to
general taxation in any such jurisdiction, or (c) file a general consent to
service of process in any such jurisdiction. Company shall promptly notify
Subscriber of the receipt by the Company of any notification with respect to the
suspension of the registration or qualification of any of the Registrable
Securities for sale under the securities or "blue sky" laws of any jurisdiction
in the United States or its receipt of actual notice of the initiation or
threatening of any proceeding for such purpose.
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ARTICLE IV
rEPRESENTATIONS AND WARRANTIES OF SUBSCRIBER
Subscriber hereby represents and warrants to Company as follows:
4.01 Full Disclosure. Subscriber has been given the opportunity to
obtain any information or documents relating to, and to ask questions and
receive answers about, Company's plans, including any future capital
restructuring. Subscriber acknowledges that it has obtained sufficient
information or documents which he deems necessary to make his own determination
to enter into this Agreement and the transactions contemplated hereby and verify
the information received. Company has answered all inquiries that Subscriber has
made of it concerning the capitalization of Company, its business and financial
condition as well as any other matter relating to the operation of Company and
the offer and sale of the Shares. No oral or written statement or inducement
which is contrary to the information set forth in herein has been made by or on
behalf of Company to Subscriber.
4.02 Information as to Subscriber. Subscriber has such knowledge and
experience in financial and business matters in general, and financial and
business matters of the type in which Company will engage in particular, that
Subscriber is capable of evaluating the merits and risks of an investment in
Company.
(a) Subscriber is familiar with the nature of and risks attendant to
an investment of this type. Subscriber is financially capable of bearing
the economic risk of this investment, and Subscriber can afford the loss
of the total amount of the investment.
(b) If Subscriber is a corporation, partnership, trust or other
entity, it is duly organized and validly existing under the laws of the
state and country of its incorporation or formation; the person executing
this Agreement in a representative or fiduciary capacity has full power
and authority to execute and deliver this Agreement in such capacity and
on behalf of the subscribing corporation, partnership, trust or other
entity. Such entity has full right and power to perform its obligations
pursuant to this Agreement.
4.03 Investment Representations.
(a) Subscriber understands that the Shares have not been registered
under the 1933 Act, or the securities laws of any state and that it is
purchasing the Shares for investment only; Subscriber agrees and represents that
it will not sell, assign, pledge or otherwise dispose of the Shares unless, in
the opinion of counsel for Company, the same may be legally sold or disposed of
without registration or qualification under the applicable state or federal
statutes, or the Shares shall have been so registered or qualified and an
appropriate registration statement shall then be in effect; the Subscriber
understands that the certificates representing the Shares will bear a legend
containing the foregoing restriction; and Subscriber understands that it must
bear the economic risk of the investment for an indefinite period of time.
(b) Subscriber is fully aware that the Shares are being sold to it
in reliance upon the exemption provided for in Section 4(2) of the Act and Rule
506 promulgated thereunder and similar exemptions provided under state
securities laws on the grounds that no public offering is involved and that the
representations, warranties and agreements set forth in this Agreement are
essential to the claiming of such exemptions.
(c) Subscriber is purchasing the Shares with its personal funds and
not with the funds of any other person, firm or entity; Subscriber is acquiring
the Shares for its personal account for investment only, and without any
intention of selling or distributing all or any part thereof; Subscriber has no
reason to anticipate any change in personal circumstances, financial or
otherwise, which would cause the Subscriber to sell, distribute, or necessitate
or require any sale or distribution of the Shares; and no person other than the
Subscriber has any beneficial interest in the Shares
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(d) Subscriber is an " accredited investor" within the meaning of
Rule 501 under the Securities Act and set forth in EXHIBIT A hereto.
4.04 No Brokers. Neither Subscriber nor any affiliate of Subscriber
has entered into or will enter into any agreement, arrangement or understanding
with any person or firm which will result in the obligation of Company to pay
any finders' fee, brokerage commission or similar payment in connection with the
transactions contemplated hereby.
article v
ACTION BY COMPANY AND SUBSCRIBER AFTER THE CLOSING
5.01 Further Assurances. On and after the Closing, Company and
Subscriber will take all appropriate action and execute all documents,
instruments or conveyances of any kind which may be reasonably necessary or
advisable to carry out any of the provisions hereof.
article vi
INDEMNIFICATION
6.01 Indemnification. Each of the parties hereto agrees to indemnify
and hold harmless the other, its officers, directors, employees, and affiliates,
and any person acting on its behalf, from and against any and all damage, loss,
liability, cost and expense (including reasonable attorney's fees) which any of
them may incur by reason of the failure by such party to fulfill any of the
terms and conditions of this Agreement, or by reason of any breach of the
representation and warranties made by such party herein.
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article vii
MISCELLANEOUS
7.01 Notices; Transfer of Funds. Unless otherwise provided herein,
any notice, request, instruction or other document to be given hereunder by any
party to the others shall be in writing and delivered in person or by courier,
telegraphed, telexed or by facsimile transmission or mailed by certified mail,
postage prepaid, return receipt requested (such mailed notice to be effective on
the date of such receipt is acknowledged), as follows:
If to Subscriber:
With a copy to:
If to Company: The Buck A Day Company Inc.
465 Davis Drive, Suite 226
Newmarket, Ontario L3Y 2P1
Fax: 905/868-9485
Attn: George Slightham
With a copy to:
or to such other place and with such other copies as any party may designate as
to itself by written notice to the others. Any transfer of funds by wire shall
be made pursuant to wire instructions delivered by the recipient of the funds to
the party making the transfer.
7.02 Choice of Law. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with the laws of the
State of New York except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or the subject of
this Agreement, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern. Except as set forth in
this Agreement, each of the parties hereto agrees (i) to submit itself to the
personal jurisdiction of any court of competent jurisdiction the United States
District Court located in the county of New York in New York in the event any
dispute arise out of this Agreement or the transactions contemplated hereby, and
(ii) not to attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court.
7.03 Entire Agreement; Amendments and Waivers. This Agreement,
together with all exhibits and schedules hereto, constitutes the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. No supplement, modification or waiver
of this Agreement shall be binding unless executed in writing by the party to be
bound thereby. No waiver of any of the provision of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
7.04 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.05 Invalidity. In the event that any one or more provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument, and to the
extent possible, effect shall be given to the intent manifested in the
provisions held to be invalid, illegal or unenforceable.
7.06 Headings and Defined Terms. The headings of the Articles and
Sections and the defined terms herein are inserted for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
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7.08 Expenses. Company and Subscriber will each be liable for their
own costs and expenses incurred in connection with the negotiation, preparation,
execution or performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or have
caused this Agreement to be duly executed on their respective behalf by their
respective officers thereunto duly authorized, as of the day and year first
above written.
By:
-----------------------------------
Name:
"Subscriber"
AGREED AND ACCEPTED:
The Buck A Day Company Inc.
By:________________________
Dennis P. LaBuick
President
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EXHIBIT A
ACCREDITED INVESTOR DEFINITION
"Accredited investor" is defined in Regulation D as any person who comes within
any of the following categories, or who the issuer reasonably believes comes
within any of the following categories, at the time of the sale of the
securities to that person:
(a) Any organization described in section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000;
(b) Any director, executive officer, or general partner of the
issuer of the securities being offered or sold, or any director, executive
officer, or general partner of a general partner of that issuer;
(c) Any natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his purchase exceeds $1,000,000;
(d) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
(e) Any bank as defined in section 3(a)(2) of the Act, or any
savings and loan association or other institution as defined in section
3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity;
any broker or dealer registered pursuant to section 15 of the Securities
Exchange Act of 1934; any insurance company as defined in section 2(13) of the
Act; any investment company registered under the Investment Company Act of 1940
or a business development company as defined in section 2(a)(48) of that Act;
any Small Business Investment Company licensed by the U.S. Small Business
Administration under section 301(c) or (d) of the Small Business Investment Act
of 1958; any plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its political
subdivisions, for the benefits of its employees if such plan has total assets in
excess of $5,000,000; any employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 if the investment decision is
made by a plan fiduciary, as defined in section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with investment decisions made solely
by persons that are accredited investors;
(f) Any private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
(g) Any trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii); and
(h) Any entity in which all of the equity owners are accredited
investors.