|
Exhibit 10.1
SUBSCRIPTION AGREEMENT
The undersigned (hereinafter “
Subscriber ”) hereby confirms its subscription for
the purchase of shares of Common Stock, par value $.001 per
share (“Common Stock”), of COMMUNICATE.COM,
INC. , a Nevada corporation (the “ Company
”) on the terms described below.
The Common Stock is sometimes referred to herein
as the “ Securities .”
In connection with this subscription, Subscriber
and the Company agree as follows:
A.
Subscription of the Subscriber .
1.
Purchase of Common Stock. The undersigned
(the "Subscriber") hereby irrevocably agrees, represents and
warrants with, to and for the benefit of the Company, that such
Subscriber is executing this Agreement in connection with the
subscription by the Subscriber for ______________ shares of
Common Stock of the Company at a price per Share of $2.00,
resulting in the aggregate purchase price set forth on the
Subscriber’s signature page hereto (the “Offering
Price”). The Subscriber understands that the Company
is relying upon the accuracy and completeness of the information
contained herein in complying with its obligations under federal
and state securities and other applicable laws. Subject to
the terms and conditions of this Agreement, upon execution and
delivery hereof by the Subscriber, the Subscriber hereby agrees
to purchase the Common Stock pursuant to the transaction hereof,
and against concurrent delivery of the purchase price for such
shares. The date upon which the final subscription is
accepted by the Company and the full Offering Price has been
tendered to the Company, shall be known as the “Closing
Date.”
2.
Offering. This offering of the Common Stock (the "Offering")
is being made to a limited group of investors, all of whom shall
represent to the Company pursuant to this Agreement that they are
"accredited investors," as that term is defined in Regulation D
promulgated under the Securities Act of 1933, as amended (the
"Securities Act") or who have otherwise been qualified as investors
by the Company. All of the Common Stock offered hereby is
being sold by the Company. The Company is offering the Common
Stock for the consideration set forth herein. The Company may
sell less than all of the Common Stock offered hereby, and shall be
entitled to accept subscriptions and receive the Offering Price for
each subscription prior to the entire Offering being subscribed
for. The Offering is being made on a “best efforts”
basis. The minimum subscription amount per investor is $25,000. The
maximum offering by the Company is $10,000,000 worth of Common
Stock.
B.
Representations and Warranties of the
Subscriber . The Subscriber hereby represents and
warrants to the Company as of the date hereof:
1.
Place of Business . The principal
place of business address set forth below is such Subscriber's
true and correct principal place of business and is the only
jurisdiction in which an offer to sell the Common Stock was made
to such Subscriber and such Subscriber has no present intention
of moving its principal place of business to or of becoming a
resident of any other state or jurisdiction.
2.
Sale or Transfer of the Common Stock.
The Subscriber understands that the Common Stock has not
been registered under the Securities Act, or under the laws of
any other jurisdiction. The Subscriber understands and
agrees that transfer or sale of the Common Stock may be
restricted or prohibited unless they are subsequently registered
under the Securities Act and, where required, under the laws of
other jurisdictions or an exemption from registration is
available. The Subscriber will not offer, sell, transfer
or assign its Common Stock or any interest therein in
contravention of this Agreement, the Securities Act or any state
or federal law. The Subscriber understands and
acknowledges that, because of the substantial restrictions on
the transferability of the Common Stock, it may not be possible
for the Subscriber to liquidate the Subscriber's investment in
the Company readily, even in the case of an emergency.
3.
Representation of Accredited Investor Status, Investment Experience
and Ability to Bear Risk. Subscriber acknowledges that the
Offering has not been registered with the Securities and Exchange
Commission because the Company is relying on an exemption from
registration under Section 4(2) of the Securities Act and
Regulation D promulgated thereunder. Subscriber believes
that at the time of the sale of the Common Stock to Subscriber,
Subscriber (or, if Subscriber is a corporation, limited liability
company or trust, each of its equity owners) qualifies as an
"accredited investor" (as defined under Rule 501 of Regulation D
promulgated under the Securities Act) using the following
qualification factors (check all appropriate items):
(__) $1,000,000 Net Worth
Test:
I, Subscriber, am a natural person and my
individual net worth, or joint net worth with my spouse (if
any), inclusive of home, furnishings and
automobiles, at the time of this purchase is in excess of
$1,000,000.
(__) $200,000 Individual/$300,000
Joint Annual Income Test:
I, Subscriber, am a natural person and my
individual annual gross income (exclusive of my spouse's income)
has been in excess of $200,000 in each of the two most recent
tax years, and I reasonably expect individual annual gross
income (exclusive of my spouse's income) to be in excess of
$200,000 for the current tax year; or I am a natural person and
my joint annual gross income (including my spouse's annual gross
income) has been in excess of $300,000 in each of the two most
recent tax years, and I reasonably expect our joint annual gross
incomes to be in excess of $300,000 for the current tax
year.
("Income" under this test is defined as
adjusted gross income for federal income tax purposes
plus (i) deductions for long-term capital gains under the
Internal Revenue Code; (ii) deductions for depletion under
section 611 et seq. of the Code; (iii) any exclusion for
interest received on tax-exempt securities; and (iv) any losses
of a Company allocated to the individual limited partners of the
Company as reported on Form 1040).
(__) Bank or Investment
Company Test:
Subscriber
is a bank as defined in section 3(a)(2) of the Securities Act,
or any savings and loan association or other institution as
defined in section 3(a)(5)(A) of the Securities Act, whether
acting in its individual or fiduciary capacity; or is a broker
or dealer registered pursuant to section 15 of the Securities
Exchange Act of 1934; or is an insurance company as defined in
section 2(13) of the Securities Act; or is any investment
company registered under the Investment Corporation Act of 1940,
or a business development company as defined in section 2(a)(48)
of that Act; or is a Small Business Investment Corporation
licensed by the U.S. Small Business Administration under section
301(c) or (d) of the Small Business Investment Act of 1958; is a
plan established and maintained by a state, its political
subdivision, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if
such plan has total assets in excess of $5,000,000; or is an
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.
(__) Private
Business Development Corporation Test:
Subscriber
is a private business development company as defined in section
202(a)(22) of the Investment Advisors Act of 1940.
(__) IRC
Section 501(c)(3) Organization Test:
Subscriber
is an organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar
business trust, or Company, not formed for the specific purpose
of acquiring the securities being offered, with total assets in
excess of $5,000,000.
(__) Direct
Relationship to Issuer Test:
Subscriber
is a director, executive officer, partner or manager of the
Company of the securities being offered or sold, or any
director, executive officer or manager of a partner or partner
of that issuer.
(__) $5,000,000
Noninvestment Trust Test:
Subscriber
is a trust with total assets in excess of $5,000,000 not formed
for the specific purpose of acquiring the securities being
offered, whose purchase is directed by a "sophisticated person"
as described in section 230.506(b)(2)(ii).
(__) Equity
Entity Comprised of Accredited Investors Test:
Subscriber
is any equity entity in which all of the equity owners are
accredited investors as defined above. Subscriber
has had one of the persons responsible for overseeing and/or
managing one or more of Subscriber’s financial accounts
complete an attestation in order to verify the information in
this Section B:
Yes
_________
No _________
In addition, Subscriber is knowledgeable and
experienced with respect to the financial and business
activities contemplated by the Company and is capable of
evaluating the risks and merits of investing in the Common Stock
and, in making a decision to proceed with this investment, has
not relied upon any representations, warranties or agreements,
other than those set forth in this Agreement and can bear the
economic risk of an investment in the Company for an indefinite
period of time, and can afford to suffer the complete loss
thereof.
4.
Own Advice . In connection with the
Subscriber's investment in the Company, the Subscriber has
carefully considered and has, to the extent the Subscriber
believes such discussion necessary, discussed with the
Subscriber's professional legal, tax and financial advisers (the
"Investment Advisors") the suitability of an investment in the
Common Stock for the Subscriber's particular tax and financial
situation and the Subscriber has determined that the Common
Stock are a suitable investment for the Subscriber.
5.
Company History; Risks . The Subscriber
represents and warrants that the Subscriber is aware
(i) that the Company has limited operating history;
(ii) that the Common Stock involve a substantial degree of
risk of loss of the Subscriber's entire investment and that
there is no assurance of any income from the Subscriber's
investment; and (iii) that any federal and/or state income
tax benefits which may be available to the Subscriber, if any,
may be lost through the adoption of new laws or regulations, to
changes to existing laws and regulations and to changes in the
interpretation of existing laws and regulations. The
Subscriber further represents that the Subscriber is relying
solely on the Subscriber's own conclusions or the advice of the
Subscriber's Investment Advisors with respect to tax aspects of
any investment in the Common Stock. The Subscriber further
represents that it has read and reviewed the Company’s
filings made with the Securities and Exchange Commission.
6.
Inquiries . The Subscriber and its
Investment Advisors have been given access to, and prior to the
execution of this Agreement, have been provided with an
opportunity to ask questions of, and receive answers from, the
Company officers concerning the Company and the terms and
conditions of the Offering and the Common Stock, and to obtain
any other information which the Subscriber and the Subscriber's
Investment Advisors required with respect to the Company and an
investment in the Company in order to evaluate such investment
and verify the accuracy of all information furnished to the
Subscriber and its Investment Advisors regarding the Company.
All such questions, if asked, were answered satisfactorily
and all information or documents provided were found to be
satisfactory. Neither the Subscriber nor its Investment
Advisors have been furnished any offering literature on which
they have relied on other this Agreement and the Subscriber and
its Investment Advisors have relied only on this Agreement.
At no time was the Subscriber presented with or solicited
by any leaflet, public promotion meeting, newspaper or magazine
article, radio or television advertisement or any other form of
general advertising or general solicitation.
7.
Authority . The Subscriber is
authorized and has full right and power to subscribe for the
Common Stock and to perform the Subscriber's obligations
pursuant to the provisions of this Agreement; the person signing
this Agreement and any other instrument executed and delivered
herewith on behalf of such Subscriber has been duly authorized
by such entity and has full power and authority to do so. If the
Subscriber is a corporation, partnership, unincorporated
association or other entity, the person signing this agreement
has the legal capacity to authorize, deliver and be bound by
this Subscription Agreement and to take all actions required
pursuant hereto and further certifies that all necessary
approvals of directors, shareholders or otherwise have been
given and obtained; and if the Subscriber is an individual, it
is of the full age of majority in the jurisdiction in which the
Subscriber is resident and is legally competent to execute,
deliver and be bound by this Subscription Agreement and take all
action pursuant hereto.
8.
No Default . The execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby and thereby will not conflict with, or
result in any violation of or default pursuant to, any provision
of any governing instrument applicable to the Subscriber, or any
agreement or other instrument to which the Subscriber is a party
or by which the Subscriber or any of the Subscriber's properties
are bound or any permit, franchise, judgment, decree, statute,
rule or regulation applicable to the Subscriber or any of the
Subscriber's business or properties.
9.
ERISA . If the Subscriber is an employee
benefit plan subject to ERISA, then such Subscriber acknowledges
that such Subscriber has been informed of and understands the
operations and business of the Company, and represents that such
Subscriber's investment in the Company (i) is permissible under
the documents and instruments governing such plan; (ii)
satisfies the diversification requirements of ERISA; (iii) is
prudent considering all the facts and circumstances, including
the fact that there is no trading market for the Common Stock;
and (iv) is not a "prohibited transaction" within the meaning of
Section 406 of ERISA.
10.
Purchase Entirely For Own Account .
This Agreement is made with the Subscriber in reliance
upon the Subscriber's representations to the Company, which by
the Subscriber's execution of this Agreement, the Subscriber
hereby confirms, that the Common Stock issuable to the
Subscriber will be acquired for investment for the Subscriber's
own account, not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and that the
Subscriber has no present intention of selling, granting any
participation in, or otherwise distributing the same. The
Subscriber represents and warrants that the Subscriber has no
contract, understanding, agreement or arrangement with any
person to sell or transfer or pledge to such person or anyone
else any of the Common Stock for which the Subscriber hereby
subscribes (in whole or in part) or any interest therein; and
the Subscriber represents and warrants that the Subscriber has
no present plans to enter into any such contract, undertaking,
agreement or arrangement.
The Subscriber represents and warrants that the
funds representing the Aggregate Subscription Price which will
be advanced by the Subscriber hereunder will not represent
proceeds of crime and the Subscriber acknowledges that the
Company may in the future be required by law to disclose the
Subscriber's name and other information relating to this
Subscription Agreement and the Subscriber's subscription
hereunder, on a confidential basis, and to the best of the
Subscriber's knowledge (i) none of the subscription funds to be
provided by the Subscriber (a) have been or will be derived from
or related to any activity that is deemed criminal under the
laws of the United States of America, or any other jurisdiction,
or (b) are being tendered on behalf of a person or entity who
has not been identified to the Subscriber, and (ii) it shall
promptly notify the Company if the Subscriber discovers that any
of such representations ceases to be true, and to provide the
Company with appropriate information in connection
therewith.
The Subscriber represents and warrants that the current
structure of this transaction and all transactions and activities
contemplated hereunder is not a plan or scheme to evade the
registration provisions of the Securities Act.
The Subscriber acknowledges that:
(i)
no securities commission or similar regulatory
authority has reviewed or passed on the merits of the Common
Stock; and
(ii)
there is no government or other insurance
covering the Common Stock; and
(iii)
| 
