Exhibit 10.1
AUXILIO, INC.
COMMON STOCK SUBSCRIPTION
AGREEMENT
The
undersigned purchaser, by signing this Subscription Agreement
(“Agreement”), will purchase the number of shares of
common stock of Auxilio, Inc. indicated below, at a purchase price
of $0.60 per share.
To purchase
the Interests, please do the following:
- Read and
understand this Agreement.
- Complete the
Accredited Investor Questionnaire provided to you along with
the Agreement.
- If you agree
with and agree to be bound by this Agreement, complete and sign
the signature
pages below.
- Write a
check, payable to “Auxilio, Inc.,” in the amount of the
investment and mail along with the
completed and signed Agreement and the Accredited Investor
Questionnaire to Auxilio,
Inc. in care of:
Auxilio,
Inc.
27401 Los
Altos, Suite 100
Mission
Viejo, CA 92691
Attention:
Paul Anthony
· Or wire
transfer that amount to:
[INSERT WIRE
INSTRUCTIONS]
DOCSOC/1345243v1/010036-0000
AUXILIO, INC.
COMMON STOCK SUBSCRIPTION
AGREEMENT
Auxilio,
Inc.
27401 Los
Altos, Suite 100
Mission
Viejo, CA 92691
Ladies and
Gentlemen:
1.
Subscription . The undersigned (the
“undersigned” or the “Purchaser”),
intending to be legally bound, hereby irrevocably purchases from
Auxilio, Inc. a Nevada corporation (the “Company”) the
number of shares of Common Stock of the Company, set forth on the
signature page hereof (the “Shares”), at a purchase
price of Sixty Cents ($0.60) per Share. This subscription is
submitted to you in accordance with and subject to the terms and
conditions described in this Subscription Agreement (this
“Agreement”), and will be binding upon acceptance by
the Company, which acceptance may be denied or delayed for any
reason. Further, to the extent the undersigned has had any
questions about the Company, the undersigned acknowledges that it
has had the opportunity to discuss the affairs of the Company with
Company management, that it has received the information requested
from the Company and that the information received from the Company
is sufficient and complete supplementary information on which it is
relying to consummate the purchase of the Shares.
2.
Subscription and Payment . As payment in full for the Shares
being purchased by it under this Agreement, the Purchaser shall
submit to the Company, by check or wire transfer, an amount equal
to the aggregate purchase price of the Shares (the “Purchase
Price”). Upon receipt of the Purchase Price, the Company
shall issue and deliver to the Purchaser a stock certificate or
certificates, registered in the name of the Purchaser, representing
the Shares being purchased.
3.
Acceptance of Subscription . The undersigned understands and
agrees that the Company in its sole discretion reserves the right
to accept or reject this or any other subscription for Shares, in
whole or in part. The Company shall have no obligation hereunder
until the Company shall execute and deliver to the undersigned an
executed copy of this Agreement. This Agreement shall continue in
full force and effect to the extent this subscription was
accepted.
4. “
Piggy-Back” Registration . If at any time or from time
to time, the Company shall determine to register any of its
securities, either for its own account or the account of a security
holder or holders (other than a registration relating solely to
employee stock option or purchase plans or relating solely to an
SEC Rule 145 transaction or to debt securities), the Company will
(i) promptly give to each Purchaser written notice thereof; and
(ii) subject to Section 4(a) below, include in such registration
(and any related qualification under state securities laws or other
compliance), and in any underwriting involved therein, all the
Shares specified in a written request or requests, received within
twenty (20) days after such written notice from the Company, by any
Purchaser or Purchasers.
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a.
In General . If the registration of which the Company gives
notice is for a registered public offering involving an
underwriting, the Company shall so advise the Purchasers as a part
of the written notice given pursuant to Section 4. In such event
the right of any Purchaser to registration pursuant to Section 4
shall be conditioned upon the inclusion of such Purchaser’s
Shares in the underwriting. All Purchasers proposing to distribute
their securities shall (together with the Company and other holders
distributing their securities through such underwriting) enter into
an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 4, if the
underwriter determines that marketing factors require a limitation
of the number of Shares to be included in the registration, such
limitation shall be done on a pro rata basis based on the total
number of Shares held by the Purchasers and based on the total
number of securities entitled to registration held by other persons
or organizations selling securities pursuant to registration rights
granted them by the Company. The Company shall advise all
Purchasers of Shares which would otherwise be registered and
underwritten pursuant hereto of any such limitations, and the
number of Shares that may be included in the registration. If any
Purchaser disapproves of the terms of any such underwriting, he may
elect to withdraw therefrom by written notice to the Company and
the underwriter. Any securities excluded or withdrawn from such
underwriting shall not be transferred prior to 90 days after the
effective date of the registration statement for such underwriting,
or such shorter period as the underwriter may require.
b.
Expenses of Registration . All expenses incurred in
connection with any registration, qualification or compliance
pursuant to this Section 4, including all registration, filing and
qualification fees, printing expenses, fees and disbursements of
counsel for the Company, and expenses of any special audits
incidental to such registration, shall be borne by the Company;
provided, however, the Company shall not be required to pay
underwriters’ discounts, commissions, or stock transfer taxes
relating to Shares or the fees of any counsel retained by the
Purchasers.
c.
Information by Purchaser . The Purchaser included in any
registration shall furnish to the Company such information
regarding such Purchaser and the distribution proposed by such
Purchaser as the Company may request in writing and as shall be
required in connection with any registration, qualification or
compliance referred to in this Section 4.
d.
Expiration of Rights . All registration rights shall expire
and not apply to the Purchaser upon the earlier of the date five
(5) years from the Effective Date or the date such Purchaser is
eligible to sell in a three-month period pursuant to SEC Rule 144
all Shares held by such Purchaser.
5.
“Market Stand-Off” Agreement . The Purchaser hereby agrees that, during the
period of duration (not to exceed 180 days) specified by the
Company and an underwriter of common stock or other securities of
the Company following the effective date of a registration
statement of the Company filed under the Securities Act of 1933, as
amended (the “Act”), he/she shall not, to the extent
requested by the Company and such underwriter, directly or
indirectly sell, offer to sell, contract to sell (including,
without limitation, any short sale), grant
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DOCSOC/1345243v1/010036-0000
any option to
purchase, pledge or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) the Shares at any time
during such period except Shares included in such registration;
provided, however, that such agreement shall not be required unless
all officers and directors and key employees of the Company enter
into similar agreements.
6.
Representations, Warranties and Covenants of the
Company .
Except as set
forth in the Exchange Act Reports (as defined below), the Company
hereby represents and warrants to, and covenants with, the
Purchaser as follows:
a. Each of
the Company and its subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power
and authority to conduct its business as currently conducted and to
own its assets wherever located.
b. The
Company has full power and authority to enter into this Agreement
and this Agreement has been, and the Shares will be, duly
authorized, executed and delivered by the Company. The Company's
execution, delivery and performance of this Agreement will not
violate (i) any law, rule or regulation applicable to the Company
or its subsidiaries or (ii) the Certificate of Incorporation or
Bylaws of the Company or its subsidiaries or (iii) any provision of
any indenture, mortgage, agreement, contract or other instrument to
which the Company or its subsidiaries is a party or by which the
Company or its subsidiaries or any of their properties or assets is
bound as of the date hereof, or result in a breach of or constitute
(upon notice or lapse of time or both) a default under any such
indenture, mortgage, agreement, contract or other instrument or
result in the creation or imposition of any lien, security
interest, mortgage, pledge, charge or other encumbrance upon any
properties or assets of the Company or its subsidiaries, except, in
the case of such clause (iii), where such violation, breach or
default would not have a material adverse effect on the business,
properties, prospects, condition (financial or otherwise), net
worth or results of operations of the Company and its subsidiaries
taken as a whole (a "Material Adverse Effect"). Upon their
execution and delivery (assuming the valid execution thereof by the
respective parties thereto other than the Company), this Agreement
will constitute valid and binding obligations of the Company,
enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability
may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law).
c. Upon
issuance, the Shares will be duly authorized and validly issued
and, upon payment therefor, will be non-assessable.
d. There is
no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened against or affecting
the Company or its subsidiaries which might result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries, taken as a whole, or which might materially and
adversely affect their property or assets or which might materially
and adversely affect the consummation of this Agreement. All
pending legal or governmental proceedings to which the Company or
its subsidiaries is a party or of which any of their property or
assets is the
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DOCSOC/1345243v1/010036-0000
subject,
including ordinary routine litigation incidental to the business,
are, considered in the aggregate, not material to the business of
the Company and its subsidiaries.
e. The
Company has timely filed all periodic reports required to be filed
under the Securities Exchange Act of 1934 ("Exchange Act Reports").
As of their respective dates, the Company's Exchange Act Reports do
not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
f. Except as
disclosed in the Company's Exchange Act Reports, the Company has
not incurred any material liabilities or obligations, direct or
contingent, nor has the Company or its subsidiaries purchased any
of their outstanding capital stock, nor paid or declared any
dividends or other distributions on their capital stock; and there
has been no change in the capital stock or consolidated long-term
debt or any increase in the consolidated short-term borrowings
(other than in the ordinary course of business) of the Company or
any material adverse change to the business, properties, assets,
net worth, condition (financial or other), results of operations or
prospects of the Company and its subsidiaries, taken as a
whole.
7.
Representations and Warranties of Purchaser
. The Purchaser hereby acknowledges,
represents, warrants and agrees as follows:
a. None of
the Shares are registered under the Securities Act of 1933 (as
amended, the “Securities Act”) or any state securities
laws, and the Shares must be held indefinitely unless a transfer of
such Shares is subsequently registered under the Securities Act or
an exemption from such registration is available. Other than as set
forth in Section 4 hereof, the Company is under no obligation to
register the Shares. The Purchaser understands that the sale of the
Shares is intended to be exempt from registration under Section
4(2) of the Securities Act and/or the provisions of Regulation D
promulgated thereunder, based, in part, upon the representations,
warranties and agreements contained in this Agreement;
b. Neither
the Securities and Exchange Commission nor any state securities
commission has approved any of the Shares or passed upon or
endorsed the merits of this transaction;
c. The
Purchaser acknowledges that all documents, records and books
pertaining to the investment in the Shares have been made available
for inspection by it, its attorney, accountant, purchaser
representative and tax advisor (collectively, the
“Advisors”) and that the Purchaser has carefully
reviewed and understands the information contained
therein;
d. The
Purchaser and the Advisors have had a reasonable opportunity to ask
questions of and receive answers from a person or persons acting on
behalf of the Company concerning the offer and sale of the Shares
and all such questions have been answered to the full satisfaction
of the Purchaser and its Advisors;
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e.
In evaluating the suitability of an investment in the Company, the
Purchaser has not relied upon any representation or other
information (oral or written) other than as contained in the
Exchange Act Reports;
f. The
Purchaser, together with the Advisors, have such knowledge and
experience in financial, tax and business matters so as to enable
each of them to utilize the information made available to each
o
