EXHIBIT 4.1
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT
made as of this _____ day of _______ 2007
between HAMPTONS EXTREME, INC
. . , a corporation organized under the laws of the State of
Delaware with offices c/o John Delaney, 298 South Catalina Street,
Ventura, California 93001 (the “ Company ”), and the
undersigned (the “ Subscriber ” and together
with each of the other subscribers in the Offering (defined below),
the “ Subscribers
”).
WHEREAS , the Company
desires to issue up to $100,000 (100 Units) aggregate amount of
units (a “ Unit
” and collectively, the “
Units ”)
in a private placement (the “ Offering ”), at a purchase
price of $1,000 per Unit;
WHEREAS , each Unit
shall consist of one thousand (1,000) shares of Common Stock, par
value $.0001 per share (the “ Shares ” ); and
WHEREAS , the
Subscriber is delivering simultaneously herewith a completed
confidential investor questionnaire (the “
Questionnaire ”),
NOW, THEREFORE , for
and in consideration of the promises and the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
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SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY AND
COVENANTS OF SUBSCRIBER
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1.1.
Subscription for Units. Subject to the terms and conditions hereinafter set forth, the
Subscriber hereby subscribes for and agrees to purchase from the
Company such aggregate amount of Units as is set forth upon the
signature page hereof; and the Company agrees to sell such Units to
the Subscriber for said purchase price subject to the
Company’s right to sell to the Subscriber such lesser number
of Units as the Company may, in its sole discretion, deem necessary
or desirable. The purchase price is
payable by certified or bank check made payable to “Mobile
Presence Technology, Inc.” and delivered contemporaneously
with the execution and delivery of this Subscription Agreement to
the Company’s address set forth above.
1.2.
Reliance on Exemptions. The Subscriber acknowledges that this Offering has not been
reviewed by the United States Securities and Exchange Commission
(“ SEC ”) or any state agency because of the Company’s
representations that this is intended to be a nonpublic offering
exempt from the registration requirements of the Securities Act of
1933, as amended (the “ 1933
Act ”) and state securities
laws. The Subscriber understands that the Company is relying in
part upon the truth and accuracy of, and the Subscriber’s
compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Subscriber set forth
herein in order to determine the availability of such exemptions
and the eligibility of the Subscriber to acquire the
Units.
1.3.
Investment Purpose. The
Subscriber represents that the Shares comprising the Units (the
“ Securities
”) are being purchased for his or her own
account, for investment purposes only and not for distribution or
resale to others in contravention of the registration requirements
of the 1933 Act. The Subscriber agrees that it will not sell or
otherwise transfer the Securities unless they are registered under
the 1933 Act or unless an exemption from such registration is
available.
1.4.
Accredited Investor. The Subscriber represents and warrants that he or she is an
“accredited investor” as such term is defined in
Rule 501 of Regulation D promulgated under the 1933 Act,
as indicated by its responses to the Questionnaire, and that it is
able to bear the economic risk of any investment in the Units. The
Subscriber further represents and warrants that the information
furnished in the Questionnaire is accurate and complete in all
material respects.
1.5.
RISK OF INVESTMENT. THE SUBSCRIBER RECOGNIZES
THAT THE PURCHASE OF THE UNITS INVOLVES A HIGH DEGREE OF RISK
INCLUDING, WITHOUT LIMITATION, ANY AND ALL RISKS DISCUSSED IN THIS
SUBSCRIPTION AGREEMENT. AN INVESTMENT IN THE COMPANY AND THE UNITS
MAY RESULT IN THE LOSS OF A SUBSCRIBER’S ENTIRE
INVESTMENT.
(a)
Risk of Loss of Investment . An investment in the Company and the Units offered hereby
involve a high degree of risk. An investment in the Units is
suitable only for investors who can bear a loss of their entire
investment.
(b)
Value of Shares is Speculative
. The terms of this offering have been determined
arbitrarily by the Company. There is no relationship between such
terms and the Company’s assets, earnings, book value and/or
any other objective criteria of value.
(c)
Dependence on Net Proceeds; No Minimum
Offering . The Company is wholly
dependent upon the net proceeds of this Offering to fund its
operations, as more specifically described elsewhere in this
Subscription Agreement. There is no commitment by any person to
purchase Units and there is no assurance that any number of Units
will be sold. Additionally, there is no minimum amount of funds
that are required to be raised in order for the Company to accept
subscriptions received from investors and the Company’s may
terminate this Offering prior to the expiration of the Offering
Period. There is no assurance that the Company will sell a
sufficient number of Units in this Offering on a timely basis or
that the net proceeds after payment of debts and other obligations
will be adequate for the Company’s needs.
(d)
Need for Additional Capital; Additional Private
Placement . The net proceeds raised by
the Company from this Offering will be used immediately to fund the
Company’s current operations. The Company will therefore
require significant additional financing shortly after this
Offering, regardless of the net proceeds received, in order to
satisfy its cash requirements. Upon completion of this offering,
the Company intends to affect a registration on Form SB-2, become a
publicly traded entity and seek to raise additional funds in
private placement transactions. However, there is no assurance that
it will be able to do so in a timely manner or on terms that will
enable it to enter its proposed business on a reasonable
basis.
(e)
Restrictions on Resale . The Units and the Shares, are “restricted”
securities and may not be resold or otherwise transferred except
pursuant to an effective
registration statement or an exemption under the
1933 Act and applicable state or “blue sky”
laws.
(f)
No Operating History; History of Losses or
Nominal Income; Development Stage Entity . The Company not commenced operations. To date and since
inception, the Company has not generated any revenues. The Company
expects to incur substantial losses for the foreseeable future and
has no operating history on which the Company can evaluate its
potential for future success. The Company is a developmental stage
entity. To evaluate the Company, investors should evaluate the
Company in light of the expenses, delays, uncertainties, and
complications typically encountered by early-stage development
businesses, many of which are beyond the Company’s control.
Early-stage development businesses commonly face risks such as the
following:
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lack of sufficient capital;
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unanticipated problems, delays, and expenses
relating to product development and implementation;
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lack of intellectual property;
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licensing and marketing difficulties;
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technological changes; and
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uncertain market acceptance of products and
services.
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(g)
Dependence upon the Company’s Sole Officer
and Director . The
Company is wholly dependent upon John Delaney, currently the sole
officer and director of the Company, for the operations and success
of the Company. The loss of his services would have a material
adverse effect on the Company’s business, financial condition
and results of operations. The Company does not have an employment
agreement with Peter Destler who is expected to devote only a
portion of his working time to the affairs of the
Company.
(h)
Capital Structure of the Company
. The following sets forth the capital structure of
the Company prior to the sale of any Securities in this
Offering.
(i) The Company
has twenty one million (21,000,000) authorized shares of capital
stock consisting of (A) twenty million (20,000,000) shares of
Common Stock and one million (1,000,000) shares of blank check
preferred stock.
(ii) The
Company has 1,000,000 shares of Common Stock issued and outstanding
as follows:
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(A)
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John Delaney – 985,000; and
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(B)
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Frank J. Hariton – 15,000 Shares.
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(John Delaney) may reallocate a portion of his
shares in the future.
(i) The Company
has no other securities currently issued and outstanding and there
are no warrants, options or other securities outstanding that are
convertible into or exercisable for any securities of the
Company.
(j) The Company
is not using an escrow agent for the Investors funds, all of which
will be paid directly to the Company. If the Company raises only
limited funds, its likelihood of success will be much less and
investors could loose all of their investment.
1.6
Summary of Proposed Business.
The Company intends to enter the rapidly growing
surfboard manufacturing industry. Through innovative research and
development the company has produced a new vacuum composite molded
surfboard, which is less toxic, more durable, and offers a greater
level performance than any other board on the market today. By
taking the Company public we hope that will be able to raise the
necessary capital to expand operations, including, but not limited
too, hiring employees, investing in CNC shaping and vacuum molding
machines, marketing, and having factories on both the east and west
coast. There is no assurance that the Company will be successful in
these endeavors or that if accomplishes all of these steps it will
be able to operate profitably. Based on informal preliminary
studies, the Company believes that the area of surfboard
manufacturing is a legitimate business opportunity for the Company
and its shareholders.
1.7
Information. The
Subscriber acknowledges receipt and full and careful review and
understanding of this Subscription Agreement with any exhibits
thereto (the “ Offering
Document ”) and hereby represents
that: (i) it has been furnished by the Company during the
course of this transaction with all information regarding the
Company which it has requested; and (ii) that it has been
afforded the opportunity to ask questions of and receive answers
from duly authorized officers of the Company concerning the terms
and conditions of the Offering, and any additional information
which it has requested.
1.8
No Representations or Warranties.
The Subscriber hereby represents that, except as
expressly set forth in the Offering Document, no representations or
warranties have been made to the Subscriber by the Company or any
agent, employee or affiliate of the Company and in entering into
this transaction the Subscriber is not relying on any information
other than that contained in the Offering Documents and the results
of independent investigation by the Subscriber.
1.9 Tax
Consequences. The Subscriber acknowledges
that this Offering of the Units may involve tax consequences and
that the contents of the Offering Documents do not contain tax
advice or information. The Subscriber acknowledges that it must
retain its own professional advisors to evaluate the tax and other
consequences of an investment in the Units.
1.10
Transfer or Resale. The
Subscriber understands that: (a) none of the Securities have
been and are not being registered under the 1933 Act or any state
securities laws; (b) the Securities may not be offered for
sale, sold, assigned, pledged, transferred or otherwise disposed of
(each a “ Disposition ”) unless,
prior to effecting any such Disposition (other than any transfer
not involving a change in beneficial ownership) (i) there is
in effect a registration statement under the 1933 Act covering the
Disposition and the Disposition is made in accordance with such
registration statement, or (ii) the Subscriber gives written
notice to the Company of such
Subscriber’s intention to effect a Disposition
and such notice shall describe the manner and circumstances of the
proposed Disposition, and shall be accompanied by either (A) a
written opinion of a legal counsel that a Disposition of the
Securities may be made pursuant to an exemption from such
registration, or (B) any other evidence reasonably
satisfactory to counsel to the Company; and (C) the Company is
under no obligation to register the Securities under the 1933 Act
or any state securities laws or to comply with the terms and
conditions of any registration exemption thereunder.
1.11
Legends. The Subscriber
understands that the certificates or other instruments representing
the Securities, until such time as they have been registered under
the 1933 Act as contemplated by the Registration Rights Agreement,
shall bear a restrictive legend in substantially the following form
(and a stop-transfer order may be placed against transfer of such
certificates or other instruments):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF
(A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, OR (B) AN OPINION OF COUNSEL, IN A REASONABLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR APPLICABLE STATE SECURITIES LAWS.
The legend set forth above shall be removed and the
Company shall issue a certificate or other instrument without such
legend to the holder of the Securities upon which it is stamped, if
(a) there is in effect a registration statement under the 1933 Act
covering the Disposition and the Disposition is made in accordance
with such registration statement or (b) if the Disposition of
the Securities is completed in satisfaction of the requirements of
Rule 144 of the 1933 Act.
1.12
Validity; Enforcement. If the Subscriber is a corporation, partnership, trust or other
entity, the Subscriber represents and warrants that: (a) it is
authorized and otherwise duly qualified to purchase and hold the
Units; and (b) that this Subscription Agreement has been duly
and validly authorized, executed and delivered and constitutes the
legal, binding and enforceable obligation of the
undersigned.
1.13
Residency. The
Subscriber represents that its principal address is furnished at
the end of this Subscription Agreement.
1.14
Foreign Subscriber. If
the Subscriber is not a United States person, such Subscriber
hereby represents that it has satisfied itself as to the full
observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Units or any use of this
Subscription Agreement, including: (a) the legal requirements
within its jurisdiction for the purchase of the Units; (b) any
foreign exchange restrictions applicable to such purchase;
(c) any governmental or other consents that may need to be
obtained; and (d) the income tax and other tax consequences,
if any, that may be relevant to the purchase, holding, redemption,
sale or transfer of the securities comprising the Units. Such
Subscriber’s subscription and payment for,
and his or her continued beneficial ownership of the
Units, will not violate any applicable securities or other laws of
the Subscriber’s jurisdiction.
1.15
NASD Member. The
Subscriber acknowledges that if it is a Registered Representative
of an NASD member firm, the Subscriber must give such firm notice
required by the NASD’s Rules of Fair Practice, receipt of
which must be acknowledged by such firm on the signature page
hereof.
1.16
Confidential Information
. The subscriber acknowledges that the information
contained in this Subscription Agreement and the related schedules
and Exhibits, as well as any other information relating to the
Company that has been provided to the Subscriber in connection with
this Offering is the confidential and proprietary information of
the Company. The Subscriber agrees that he shall not disclose any
of said information to any other person, except for his financial
and legal advisors, who require such information to advise the
Subscriber with respect to his contemplated investment, and in the
event that the Subscriber does not invest in this Offering, he
shall return all materials provided to him by the Company,
including any copies thereof, to the Company.
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REPRESENTATIONS BY THE COMPANY
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The Company represents and warrants to the
Subscriber, except as set forth in the disclosure schedules
attached hereto:
2.1
Organization and Qualification.
The Company and its “ Subsidiaries ” (which for
purposes of this Subscription Agreement means any entity in which
the Company, directly or indirectly, owns capital stock and holds a
majority or similar interest) are duly organized and validly
existing in good standing under the laws of the jurisdiction in
which they were organized, and have the requisite power and
authorization to own their properties and to carry on their
business as now being conducted. Each of the Company and its
Subsidiaries is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which its
ownership of property or the nature of the business conducted by it
makes such qualification necessary, except to the extent that the
failure to be so qualified or be in good standing would not have a
Material Adverse Effect. As used in this Subscription Agreement,
“ Material Adverse
Effect ” means any material
adverse effect on the business, properties, assets, operations,
results of operations or financial condition of the Company and its
Subsidiaries, if any, taken as a whole, or on the transactions
contemplated hereby, or by the other Offering Documents or the
agreements and instruments to be entered into in connection
herewith or therewith, or on the authority or ability of the
Company to perform its obligations under the Offering
Documents.
2.2
Authorization; Enforcement; Validity.
The Company has the requisite corporate power and
authority to enter into and perform its obligations under this
Subscription Agreement and to perform its obligations under the
Offering Document, and to issue the Securities in accordance with
the terms of the Offering Document. The execution and delivery of
the Offering Document by the Company and the consummation by the
Company of the transactions contemplated by the Offering Documents,
including without limitation the issuance of the Securities, have
been duly authorized by the Company’s board of directors and
no further consent or authorization is required by the Company, its
board of directors or its stockholders. The Offering Documents have
been duly executed and delivered by the Company, and
constitute
valid and binding obligations of the Company
enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by general principles
of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting
generally, the enforcement of creditors’ rights and
remedies.
2.3
Capitalization . Prior
to the Initial Closing, the authorized, issued and outstanding
securities of the Company (including, but not limited to, all
and/or other securities convertible into equity securities of the
Company and all options and warrants, all of which are listed
in Section 1.1(i)
of this Subscription Agreement. All of the issued
and outstanding securities of the Company have been and are, or
upon issuance will be duly authorized, validly issued, fully paid
and non-assessable. Except as disclosed in Offering Document,
(i) no shares of the Company's capital stock are subject to
preemptive rights under Delware law or any other similar rights or
any liens or encumbrances suffered or permitted by the Company;
(ii) there are no outstanding debt securities issued by the
Company; (iii) there are no
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