EXHIBIT 10.2
Subscription Agreement
SUBSCRIPTION AGREEMENT
El Avila, Inc.
Attn: Mark Shelley
1. APPLICATION. The undersigned ("Investor"), intending to be legally
bound, hereby subscribes for ______________ Shares of the $.001 par value Common
Stock ("Securities") of El Avila, Inc, a Nevada corporation (the "Company") at a
purchase price of ten cents($0.10) per Share, equaling a total price of
_______________________________ Dollars ($____________).
The undersigned understands that his/her Subscription to purchase
Securities may be accepted or rejected in whole or in part by the Company in its
sole discretion. Enclosed is the undersigned's check made payable to
Manufacturers and Traders Trust Company/El Avila Escrow Account" and has been
forwarded to the escrow account in the self-addressed stamped envelope that has
been provided for convenience. The Investor may also elect to submit his
subscription funds to the escrow account VIA wire transfer as provided in this
Agreement.
2. representations and warranties. The undersigned represents and warrants
as follows:
(a) The Securities are being purchased solely for the undersigned's account,
for investment purposes only and not with a view to the distribution of
said Securities and not with a view to assignment or resale thereof, and no
other person will have a direct or indirect beneficial interest in such
Securities.
(b) The undersigned, if a corporation, partnership, trust or other entity is
authorized and otherwise duly qualified to purchase and hold the Securities
and to enter into this Subscription Agreement.
3. MISCELLANEOUS.
(a) This Subscription Agreement shall survive the death or disability of the
undersigned and shall be binding upon the undersigned's heirs, executors,
administrators, successors and permitted assigns.
(b) This Subscription Agreement has been duly and validly authorized, executed
and delivered by the undersigned and constitutes the valid, binding and
enforceable agreement of the undersigned. If this Subscription Agreement is
being completed on behalf of a corporation, partnership, or trust, it has
been completed and executed by an authorized corporate officer, general
partner, or trustee.
(c) This Subscription Agreement referred to herein constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof and together supersede all prior discussions or agreements relating
to the purchase of these Securities.
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3. MISCELLANEOUS - continued
(d) Within five (5) days after receipt of a written request from the Company,
the undersigned agrees to provide such information, to execute and deliver
such documents and to take, or forbear from taking, such actions or provide
such further assurances as reasonably may be necessary to correct any
errors in documentation or to comply with any and all laws to which the
Company is subject.
(e) The Company shall be notified immediately of any change in any of the
information contained above occurring prior to the undersigned's purchase
of the Securities or at any time thereafter for so long as the undersigned
is a holder of the Securities.
4. REPRESENTATIONS. The undersigned hereby additionally represents and
warrants that:
(i) The undersigned is purchasing for his/her/its own account and not on
behalf of any other person.
(ii) The undersigned will not sell or assign the Securities except in
accordance with the provisions of the Securities Act of 1933, as amended,
or pursuant to the registration Requirements under the Act, or pursuant to
an available exemption under the Act such as Rule 144, which requires a
prior holding period of not less than one year from date of purchase.
(iii) Share certificates shall bear an appropriate restrictive legend that
restricts the further sale or assignment of the Securities except in
accordance with the foregoing provisions set forth above.
(iv) The undersigned is aware that there is no public market for the
Company's Securities that the transfer of Securities is subject to certain
restrictions according to law and that, as a consequence, it may not be
possible for the undersigned to liquidate the Securities, which may have to
be held indefinitely, which makes this offering an illiquid investment.
5. ACCREDITED INVESTOR CERTIFICATION. The undersigned further represents
and warrants as indicated below:
(Please mark one or more of the seven following statements)
----
[ ] 1. I am a natural person who had individual income of more than
$200,000 in each of the most recent two years, or joint income
with my spouse in excess of $300,000 in each of the most recent
two years, and reasonably expect to reach that same income level
for the current year. The term "income", for purposes of this
Subscription Agreement, shall be computed as follows: individual
adjusted gross income, as reported (or to be reported) on a
federal income tax return, increased by (1) any deduction of
long-term capital gains under Section 1202 of the current
Internal Revenue Code (the "Code"), (2) any deduction for
depletion under Section 611 of the Code, (3) any exclusion for
interest under Section 103 of the Codes and (4) any losses of a
partnership as reported on Schedule E of Form 1040);
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5. ACCREDITED INVESTOR CERTIFICATION - continued
[ ] 2. I am a natural person whose individual net worth (i.e., total
assets in excess of total liabilities), or joint net worth with
my spouse, will at the time of purchase of the Securities be in
excess of $1,000,000;
[ ] 3. The Investor is a trust, which trust has total assets in excess
of $5,000,000, which is not formed for the specific purpose of
acquiring the Securities being offered and whose purchase is
directed by a sophisticated person as described in Rule
506(b)(ii) of Regulation D and who has such knowledge and
experience in financial and business matters that he is capable
of evaluating the risks and merits of an investment in the
Securities;
[ ] 4. The Investor is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974,
and either (a) the investment decision will be made by a plan
fiduciary, as defined in Section 3 (21) of such Act, which is
either a bank, insurance company, or a registered investment
adviser; or (b) the employee benefit plan has total assets in
excess of $5,000,000; or (c) the employee benefit plan is a
self-directed plan, within the meaning of Title I of such act,
and the person directing the purchase is an Accredited Investor.
*
[ ] 5. The Investor otherwise satisfies the requirements of Section
501(a)(1), or satisfying the requirements of Section 501(a)(2) or
(3) of Regulation D promulgated under the Act, which includes but
is not limited to, a self-directed employee benefit plan where
investment decisions are made solely by persons who are
"Accredited Investors" as otherwise defined in Regulation D;
[ ] 6. I am a Director or Executive Officer of the Company; or
[ ] 7. The Investor is an entity (other than a trust) in which all of
the equity owners meet the requirements of at least one of the
above subparagraphs.
The undersigned has executed this Subscription Agreement this _______ day
of___________________________, 2005.
X per share = $ USD
_________________________ _______________________ _________________
(Shares being purchased) (Subscription Price)
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If the Investor is an individual, check whether purchased as [ ] JOINT TENANTS,
as [ ] TENANTS IN COMMON, as [ ] COMMUNITY PROPERTY, or as an [ ] Individual.
Securities should be issued in the name(s) of:
- ---------------------------------------- --------------------------------------
(Print or Type Owner's Name) (Print or Type Owner's Name)
- ---------------------------------------- --------------------------------------
(Owner's Mailing Address) (Owner's Mailing Address)
- ---------------------------------------- --------------------------------------
(City) (State) (Zip) (City) (State) (Zip)
- ---------------------------------------- --------------------------------------
(Telephone) (Telephone)
- ---------------------------------------- --------------------------------------
(Signature of Investor) (Signature of Investor)
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If the Investor is a [ ] PARTNERSHIP, [ ] CORPORATION, [ ] LIMITED LIABILITY
COMPANY, or [ ] TRUST (check applicable):
- ---------------------------------------- --------------------------------------
(Print Name of Entity as Owner) (Title)
- ---------------------------------------- --------------------------------------
(Owner Mailing Address) (Print Name of Authorized Officer)
by:
- ---------------------------------------- --------------------------------------
(City) (State) (Zip) (Signature)
Subscription Accepted And Agreed To
This Day of 2005
--------- -------------------------
EL AVILA, INC.
By:
-----------------------------------------------
Mark Shelley, its President
WIRING INSTRUCTIONS:
ABA #022000046
M&T Bank Buffalo NY
A/C
Account Name: EL AVILA, INC.
Attn: Joan Stapley
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