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Exhibit 10.2
BANKS.COM, INC.
SUBSCRIPTION AGREEMENT
Gentlemen:
1. Subscription .
(a) Subject to the conditions set forth in this Subscription
Agreement (the "Agreement"), the undersigned subscriber (the
"Subscriber") intending to be legally bound, hereby irrevocably
subscribes to purchase from Banks.com, Inc., a Florida corporation
(the "Company"), an aggregate of
shares of Series C Preferred Stock (the "Securities") for an
aggregate purchase price of
, or Ten Cents ( $0.10 ) per share of the Securities,
which terms and conditions shall not be materially different from
those set forth on Exhibit A, except as required by the rules and
regulations of the NYSE Alternext U.S. This subscription is
submitted to you in accordance with and subject to the terms and
conditions described in this Agreement.
(b) The purchase price for the Securities shall be made payable
to the Company and should be delivered, together with two executed
and properly completed copies of this Agreement, to the
Company.
(c) The Subscriber may not withdraw this subscription or any
amount paid pursuant thereto, unless the Company fails to close on
Subscriber’s investment in the Securities within 60 days of
the date hereof. The Subscriber understands that his or her
purchase of the Securities is contingent upon the acceptance in
writing of this Subscription Agreement by the Company and the
approval of the NYSE Alternext U.S. of the terms and conditions of
the Securities.
2. Representations. Warranties and Covenants of the
Subscriber . The Subscriber hereby represents and warrants to,
and agrees with, the Company as follows:
(a) The Subscriber is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D promulgated under the
Securities Act of 1933 (the "Securities Act"). Specifically:
[PLEASE RESPOND BELOW AS APPROPRIATE]
If the subscriber is an INDIVIDUAL, please answer the following
questions:
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(1)
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Did your individual annual income
during each of the two most recent years exceed $200,000 and do you
expect your annual income during the current year to exceed
$200,000?
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Yes
No
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(2)
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If you are married, did your joint
annual income with your spouse during each of the two most recent
years exceed $300,000 and do you expect your joint annual income
with your spouse during the current year to exceed
$300,000?
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Yes
No
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(3)
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Does your individual or joint
(together with your spouse) net worth ( including your home,
home furnishings and automobile) exceed $1,000,000?
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Yes
No
IF THE ANSWERS TO ALL OF THE IMMEDIATELY PRECEDING QUESTIONS
ARE NO, THE SUBSCRIBER DOES NOT MEET THE REQUISITE FINANCIAL
SOPHISTICATION STANDARDS AND WILL NOT BE ACCEPTED AS A PURCHASER OF
THE SECURITIES.
If the subscriber is a CORPORATION, LIMITED LIABILITY COMPANY,
PARTNERSHIP, or TRUST please answer the following questions:
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(4)
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Was the corporation, limited
liability company, partnership or trust formed for the specific
purpose of investing in the Company?
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Yes
No
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(5)
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Does the corporation, limited
liability company, partnership or trust have total assets in excess
of $5,000,000?
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Yes
No
If the answer to question (4) is yes or the answer
to question (5) is no, please answer the following
questions:
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(6)
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Please list the names of each
shareholder in the corporation, each member in the limited
liability company, each partner in the partnership, and in the case
of a revocable trust, each grantor of the trust:
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(7) Does each person listed in response to
question (6) either (i) have an individual annual income
in excess of $200,000 in each of the two most recent years and
expect to have an annual income in excess of $200,000 during the
current year, (ii) if married, have a joint annual income with
his/her spouse in excess of $300,000 in each of the two most recent
years and expect to have an annual income in excess of $300,000
during the current year, or (iii) have an individual or joint
(together with his/her spouse) net worth (including home, home
furnishings and automobiles) in excess of $1,000,000?
Yes
No
IF THE ANSWER TO QUESTION 7 IS "NO," THE SUBSCRIBER DOES NOT
SATISFY THE INVESTOR SUITABILITY REQUIREMENTS FOR THIS OFFERING AND
WILL NOT BE ACCEPTED AS A PURCHASER OF THE SECURITIES. IN THE CASE
OF A TRUST THAT IS NOT A REVOCABLE TRUST, IF THE ANSWER TO QUESTION
4 IS "YES" OR THE ANSWER TO QUESTION 5 IS "NO", THE SUBSCRIBER DOES
NOT SATISFY THE INVESTOR SUITABILITY REQUIREMENTS FOR THIS OFFERING
AND WILL NOT BE ACCEPTED AS A PURCHASER OF THE SECURITIES.
(b) The Subscriber has a fundamental understanding of the
Company’s business.
(c) The Subscriber has had access to and has received all
materials that have been requested by the Subscriber and has had a
reasonable opportunity to ask questions of the Company and its
representatives. The Company has answered all inquiries that the
Subscriber or the Subscriber’s representatives have asked the
Company. The Subscriber has taken all the steps necessary to
evaluate the merits and risks of an investment in the
Securities.
(d) The Subscriber has such knowledge and experience in finance,
securities, investments and other business matters so as to be able
to protect the interests of the Subscriber in connection with this
transaction, and the Subscriber’s investment in the Company
is not material when compared to the Subscriber’s total
financial capacity.
(e) The Subscriber understands the various risks of an
investment in the Company as proposed herein and can afford to bear
such risks, including, without limitation, the risks of losing the
entire investment. Certain of these risk factors are set forth in
the Company’s filings with the Securities and Exchange
Commission.
(f) The Subscriber acknowledges that there is no market for the
Securities and the trading market for the Shares is limited, and
therefore, it may be impossible to liquidate the investment in the
Securities.
(g) The Subscriber understands that the Securities have not been
registered under the Securities Act, that the Securities will be
issued on the basis of the exemption
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provided by Section 4(2) of the Securities
Act and Regulation D promulgated thereunder and under exemptions
under certain state securities laws, that this transaction has not
been reviewed by, passed on or submitted to any federal or state
agency or self-regulatory organization where an exemption is being
relied upon, and that the Company’s reliance thereon is based
in part upon the representations made by the Subscriber in this
Agreement.
(h) The Subscriber acknowledges that the Subscriber is familiar
with the limitations imposed by the Securities Act and the rules
and regulations thereunder on the transfer of the Securities. In
particular, the Subscriber agrees that the Company shall not be
required to give any effect to sale, assignment or transfer of the
Securities, unless (i) the sale, assignment or transfer of the
Securities is registered under the Securities Act, it being
understood that the Securities are not currently registered for
sale and that the Company has no obligation or intention to so
register the Securities, or (ii) such Securities are sold,
assigned or transferred in accordance with all the requirements and
limitations of Rule 144 under the Securities Act, it being
understood that Rule 144 is not available at the present time for
the sale of the Securities, or (iii) such sale, assignment or
transfer is otherwise exempt from registration under the Securities
Act. The Subscriber further understands that an opinion of counsel
and other documents may be required to transfer the Securities.
(i) If the Subscriber is an individual, the Subscriber is a
bona-fide resident of the state set forth in the address provided
on the Subscriber’s signature page to this Agreement.
(j) If the Subscriber is a partnership, trust, corporation or
other entity: (A) it has made other investments or engaged in
other substantial business activities prior to receiving an
opportunity to purchase the Securities; (B) it was not
organized for the purpose of acquiring the Securities; (C) the
person executing on behalf of the partnership, trust, corporation
or other entity has the full power and authority to execute and
comply with the terms of this Agreement on behalf of such entity
and to make the representations and warranties made herein on its
behalf (D) its principal place of business and principal
office are located in the state set forth in its address below; and
(E) the investment in the Securities has been affirmatively
authorized, if required, by the governing board of such entity and
is not prohibited by the governing documents of the entity.
(k) The Subscriber will acquire the Securities for the
Subscriber’s own account for investment and not with a view
to the sale or distribution thereof or the granting of any
participation therein, and has no present intention of distributing
or selling to others any of such interest or granting any
participa
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