EXHIBIT 4.9.1
FORM OF SUBSCRIPTION
AGREEMENT
SUBSCRIPTION
BOOKLET
HYBRID DYNAMICS
CORPORATION
Offering of $750,000 worth of
Units consisting of
Series B Convertible
Preferred Stock and Warrants to purchase Common
Stock
CONTENTS
Instructions
for Subscription
Exhibit
A: Wiring
and Check Instructions
Exhibit
B: Subscription
Agreement
Exhibit
C: Confidential
Purchaser Questionnaire
Exhibit
D: Form
W-9
HYBRID DYNAMICS
CORPORATION
SUBSCRIPTION
BOOKLET
INSTRUCTIONS FOR SUBSCRIPTION FOR
UNITS
Each subscriber
for units (the “Units”) consisting of up to 2,000
Shares of Series B Convertible Preferred Stock $500 stated value
and 200,000 Warrants of Hybrid Dynamics Corporation (the
“Company”) must do the following:
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Complete, sign
and deliver the Subscription Agreement included in this
Subscription Booklet.
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Complete, sign
and deliver the Confidential Purchaser Questionnaire included in
this Subscription Booklet and the Form W-9
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Deliver payment
in the amount of $50,000.00 per Unit in accordance with the wire
transfer and check instructions attached hereto as Exhibit A
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Delivery of the
completed subscription documents described above and check (if
applicable) should be delivered directly to the Company at the
following address:
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Hybrid Dynamics
Corporation
52-66 Iowa Avenue
Paterson, NJ 07503
Attention: Mark S.
Klein
THE COMPANY MAY
ACCEPT OR REJECT SUBSCRIPTIONS IN THEIR SOLE
DISCRETION. THE OFFERING IS AVAILABLE ONLY TO
“ACCREDITED INVESTORS” AS DEFINED UNDER REGULATION D
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. In the
event that a subscription offer is not accepted by the Company the
subscription funds shall be returned to the subscriber, without
interest thereon or deduction therefrom.
EXHIBIT A
Wire and Check
Instructions
Wiring
Instructions :
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Bank Name:
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ABA #:
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Acct #:
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Acct. Name:
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Hybrid Dynamics
Corporation
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Checks :
Checks should
be made out to “Hybrid Dynamics Corporation”
EXHIBIT B
SUBSCRIPTION
AGREEMENT
HYBRID DYNAMICS
CORPORATION
Please review, sign on page S-1,
and return to:
Hybrid Dynamics
Corporation
52-66 Iowa Avenue
Paterson, NJ 07503
Attention: Mark S.
Klein
Phone: (973)
279-3261
Fax: (973)
279-3262
HYBRID DYNAMICS
CORPORATION
SUBSCRIPTION
AGREEMENT
The undersigned
(hereinafter “ Subscriber ”) hereby confirms
his/her/its subscription for the purchase of units (the
“Units”) each consisting of 100 Shares of Series B
Convertible Preferred Stock and Warrants for the purchase of 10,000
Shares of Common Stock of Hybrid Dynamics Corporation (the “
Securities ”), a Nevada corporation (the “
Company ”), on the terms described below, at a
purchase price of $50,000.00 per unit (the “ Purchase
Price ”);
Capitalized terms used and not
otherwise defined herein shall have the meanings set forth for such
terms in the Company’s Confidential Summary Memorandum, dated
May 29, 2009 (as amended or supplemented, and together with all
documents and filings attached thereto, the “
Memorandum ”).
In connection with this subscription, Subscriber
and the Company agree as follows:
1.
Purchase and Sale of the Securities .
(a) Under
this Subscription Agreement (“the Subscription
Agreement ”), the Company hereby agrees to issue a
maximum of twenty (20) Units (the “Units”) each Unit
composed of (i) 100 shares its Series B Convertible Preferred Stock
$500 stated value (“Unit Preferred Stock”), and (ii)
Warrants for the purchase of 10,000 shares of its $0.00015 par
value common stock (“Unit Common Stock”) at a strike
price of $5.00 (“Unit Warrant”), at a purchase price of
$50,000.00 per Unit (“Purchase Price”). Subscriber
hereby agrees to purchase from the Company, a number of Units at a
price equal to Purchase Price and for the aggregate subscription
amount set forth on the signature page hereto. The
minimum investment is $50,000.00 per subscriber. The
Subscriber understands that this subscription is not binding upon
the Company until the Company accepts it. The Subscriber
acknowledges and understands that acceptance of this subscription
will be made only by a duly authorized representative of the
Company executing and mailing or otherwise delivering to the
Subscriber, at the Subscriber’s address set forth herein, a
counterpart copy of the signature page to this Subscription
Agreement indicating the Company’s acceptance of this
Subscription. The Company reserves the rights, in its
sole discretion and for any reason whatsoever to accept or reject
this subscription in whole or in part. Following the
acceptance of this Subscription Agreement by the Company and the
receipt the Company shall issue and deliver to Subscriber
certificates evidencing the appropriate number of Securities
subscribed for against payment in U.S. Dollars of the Purchase
Price. If this subscription is rejected, the Company and
Subscriber shall thereafter have no further rights or obligations
to each other under or in connection with this Subscription
Agreement. If this subscription is not accepted by the
Company on or before the last day of the Offering Period, this
subscription shall be deemed rejected.
(b) Subscriber
has hereby delivered and paid concurrently herewith the aggregate
Purchase Price set forth on the signature page hereto required to
purchase the Shares subscribed
for hereunder,
which amount has been paid in U.S. Dollars by cash, wire transfer
or check, subject to collection, to the order of “Hybrid
Dynamics Corporation.”
(c) Subscriber
understands and acknowledges that this subscription is part of a
private placement by the Company of up to $750,000.00 of gross
proceeds (subject to an increase of an additional $250,000 of gross
proceeds), which offering is being made on a “best
efforts” basis. Subscriber understands that
payments hereunder shall, upon having been received and accepted by
the Company will become immediately available to the
Company.
2.
Representations and Warranties of Subscriber
. Subscriber represents and warrants to the Company as
follows:
(a) Subscriber
is an “accredited investor” as defined by Rule 501 of
Regulation D (“ Regulation D ”) promulgated
under the Securities Act of 1933, as amended (the “
Act ”), and Subscriber is capable of evaluating the
merits and risks of Subscriber’s investment in the Company
and has the ability and capacity to protect Subscriber’s own
interests.
(b) Subscriber
understands that the Unit, the Unit Preferred Stock, the Warrants
and the underlying shares of common stock, par value $.00015 per
share (the “ Common Stock ” and, with the Unit
Preferred Stock and the Warrants, the “ Securities
”) will not be registered under the Act on the grounds that
the issuance thereof is exempt from the registration requirements
of the Act by Section 4(2) of the Act and/or Regulation D
promulgated thereunder as a transaction by an issuer not involving
any public offering and that, in the view of the United States
Securities and Exchange Commission (the “Commission
”), the statutory basis for the exception claimed would not
be present if the representations and warranties of Subscriber
contained in this Subscription Agreement or the Confidential
Purchase Questionnaire are untrue or, notwithstanding
Subscriber’s representations and warranties, Subscriber
currently has in mind acquiring the Securities for resale or
distribution upon the occurrence or non-occurrence of some
predetermined event.
(c) Subscriber
is purchasing the Securities subscribed for hereby for investment
purposes for their own account and not with a view to distribution
or resale, nor with the intention of selling, transferring or
otherwise disposing of all or any part thereof for any particular
price, or at any particular time, or upon the happening of any
particular event or circumstances, except selling, transferring, or
disposing the Securities in full compliance with all applicable
provisions of the Act, the rules and regulations promulgated by the
Commission thereunder, and applicable state securities laws; and
that an investment in the Securities is not a liquid
investment. Subscriber understands that the Company is
publicly held, and that there is a limited trading market for its
securities.
(d) Subscriber
acknowledges that the Securities must be held indefinitely unless
subsequently registered under the Act or unless an exemption from
such registration is available. Subscriber is aware of
the provisions of Rule 144 promulgated under the Act, which permits
limited resale of securities purchased in a private placement
subject to certain limitations and to the satisfaction of certain
conditions.
(e) Subscriber
acknowledges that Subscriber has had the opportunity to ask
questions of, and receive answers from, the Company or any
authorized person acting on its behalf concerning the Company and
its business and to obtain any additional information, to the
extent possessed by the Company (or to the extent it could have
been acquired by the Company without unreasonable effort or
expense) necessary to verify the accuracy of the information
received by Subscriber. In connection therewith,
Subscriber acknowledges that Subscriber has had the opportunity to
discuss the Company’s business, management and financial
affairs with the Company’s management or any authorized
person acting on its behalf. Subscriber has received and
reviewed the Memorandum, and all the information that Subscriber
desires. Without limiting the generality of the
foregoing, Subscriber has been furnished with or has had the
opportunity to acquire, and to review all information that
Subscriber desires with respect to the Company’s business,
management, financial affairs and prospects. In
determining whether to make this investment, Subscriber has relied
solely on Subscriber’s own knowledge and understanding of the
Company and its business based upon Subscriber’s own due
diligence investigations and the information furnished pursuant to
this paragraph. Subscriber understands that no person
has been authorized to give any information or to make any
representations which were not contained in the Memorandum and
Subscriber has not relied on any other representations or
information.
(f) Subscriber
has all requisite legal and other power, authority and capacity to
execute and deliver this Subscription Agreement and to carry out
and perform Subscriber’s obligations under the terms of this
Subscription Agreement. This Subscription Agreement
constitutes a valid and legally binding obligation of Subscriber,
enforceable in accordance with its terms, and subject to laws of
general application relating to bankruptcy, insolvency and the
relief of debtors and other general principals of equity, whether
such enforcement is considered in a proceeding in equity or
law.
(g) Subscriber
has carefully considered and has discussed with the
Subscriber’s legal, tax, accounting and financial advisors,
to the extent the Subscriber has deemed necessary, the suitability
of this investment and the transactions contemplated by this
Subscription Agreement for the Subscriber’s particular
federal, state, local and foreign tax and financial situation and
has independently determined that this investment and the
transactions contemplated by this Subscription Agreement are a
suitable investment for the Subscriber. Subscriber has
relied solely on such advisors and not on any statements or
representations of the Company or any of its
agents. Subscriber understands that Subscriber (and not
the Company) shall be responsible for Subscriber’s own tax
liability that may arise as a result of this investment or the
transactions contemplated by this Subscription
Agreement.
(h) This
Subscription Agreement and the Confidential Purchase Questionnaire
accompanying this Subscription Agreement do not contain any untrue
statement of a material fact or omit any material fact concerning
Subscriber. Subscriber has a net worth and annual gross income as
stated in the Purchaser Questionnaire, and all of the answers and
statements in the Purchaser Questionnaire are true and
correct.
(i) There
are no actions, suits, proceedings or investigations pending
against Subscriber or Subscriber’s assets before any court or
governmental agency (nor, to Subscriber’s knowledge, is there
any threat thereof) which would impair in any way
Subscriber’s ability to enter into and fully perform
Subscriber’s commitments and obligations under this
Subscription Agreement or the transactions contemplated
hereby.
(j) The
execution, delivery and performance of and compliance with this
Subscription Agreement will not result in any material violation
of, or conflict with, or constitute a material default under, any
of Subscriber’s articles of incorporation or bylaws, if
applicable, or any agreement to which Subscriber is a party or by
which Subscriber is bound, nor result in the creation of any
mortgage, pledge, lien, encumbrance or charge against any of the
assets or properties of Subscriber or the Securities.
(k) Subscriber
acknowledges that an investment in the Securities is speculative
and involves a high degree of risk and that Subscriber can bear the
economic risk of the purchase of the Securities, including a total
loss of Subscriber’s investment. Subscriber has adequate
means of providing for current needs and personal contingencies and
has no need for liquidity in an investment in the
Securities. Subscriber’s overall financial
commitment to investments that are not readily marketable is not
disproportionate to Subscriber’s net worth, and
Subscriber’s investment in the Securities will not cause an
overall commitment to become excessive. Subscriber has no reason to
anticipate any change in Subscriber’s personal circumstances,
financial or otherwise, which may cause Subscriber to attempt to
resell or transfer the Securities.
(l) Subscriber
acknowledges that he/she/it has carefully reviewed and considered
the risk factors discussed in the “Risk Factors”
section of the Memorandum prior to making an investment
decision.
(m) Subscriber
recognizes that no federal, state or foreign agency has recommended
or endorsed the purchase of the Securities.
(n) Subscriber
is aware that the Securities are and will be, when issued,
“restricted securities” as that term is defined in Rule
144 promulgated under the Act.
(o) Subscriber
understands that any and all certificates representing the
Securities and any and all securities issued in replacement thereof
or in exchange therefore shall bear the following legend or one
substantially similar thereto, which Subscriber has read and
understands:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS
AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS
OR AN EXEMPTION FROM
REGISTRATION
UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR
THIS CORPORATION, IS AVAILABLE.”
(p) In
addition, the certificates representing the Securities, and any and
all securities issued in replacement thereof or in exchange
therefore, shall bear such legend as may be required by the
securities laws of the jurisdiction in which Subscriber
resides.
(q) Because
of the restrictions imposed on resale, Subscriber understands that
the Company shall have the right to note stop-transfer instructions
in its stock transfer records, and Subscriber has been informed of
the Company’s intention to do so. Any sales,
transfers, or any other dispositions of the Securities by
Subscriber, if any, will be in compliance with the Act and all
applicable rules and regulations promulgated thereunder.
(r) Subscriber
acknowledges that Subscriber has such knowledge and experience in
financial and business matters that he is capable of evaluating the
merits and risks of an investment in the Securities and of making
an informed investment de
