Exhibit 4.1
SUBSCRIPTION
AGREEMENT
THIS SUBSCRIPTION AGREEMENT
made as of this _____ day of _______ 2009
between IBOS Inc. , a corporation organized under the laws
of the State of Delaware with offices c/o Ravi Sharma 4879 E. La
Palma Ave., Suite 201, Anaheim, CA 92807 (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 ten thousand (10,000)
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:
I.
SUBSCRIPTION FOR UNITS AND
REPRESENTATIONS BY AND COVENANTS OF SUBSCRIBER
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
checks made payable to “IBOS 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 S-1, 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)
Development Stage Entity Planned
Expansion . While the
Company has operated since 2006, we intend to expand our operations
and hire additional personnel. In connection with our expansion, we
may experience the following:
·
lack of sufficient capital;
·
competition
·
adverse effects of general economic
conditions;
·
uncertain market acceptance of our
services;
·
an intense and immediate need for
additional personnel.
(g)
Dependence upon the Company’s
Officers and Directors . The Company is wholly dependent upon Deepak Danavar,
Ravi Sharma and James Villalobos, currently the officers and
directors of the Company, for the operations and success of the
Company. The loss of any officers’ services would have
a material adverse effect on the Company’s business,
financial condition and results of operations. The Company
does not have employment agreements with Deepak Danavar, Ravi
Sharma and James Villalobos.
(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 one hundred five million
(105,000,000) authorized shares of capital stock consisting of (A)
one hundred million (100,000,000) shares of Common Stock and five
million (5,000,000) shares of blank check preferred
stock.
(ii)
The Company has 9,200,000 shares of
Common Stock issued and outstanding as follows:
(A)
Deepak Danavar –
3,000,000;
(B)
Ravi Sharma – 3,000,000;
(C)
James Villalobos – 3,000,000;
and
(D)
Frank Hariton – 200,000
shares
Messrs. Danavar, Sharma, and Villalobos
may reallocate a portion of their shares in the future.
(iii)
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.
1.6
Summary of Proposed
Business. The Company operates
a web-based comprehensive selection of electronic medical claims
processing and collection solutions to the healthcare provider
industry which it intends to expand. The Company will secure
additional office space, hire necessary personnel and seek to
further expand its business. Based on management’s assessment
of the Company’s operating history, the Company believes that
it represents a legitimate business to its potential
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.
II.
REPRESENTATIONS BY THE
COMPANY
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 the Escrow
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
Delaware 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 outstanding options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to,
or securities or rights convertible into or exchangeable for, any
shares of capital stock of the Company or any of its Subsidiaries,
or contracts, commitments, understandings or arrangements by which
the Company or any of its Subsidiaries is or may become bound to
issue additional shares of capital stock of the Company or any of
its Subsidiaries or options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to,
or securities or rights convertible into or exchangeable for, any
shares of capital stock of the Company or any of its Subsidiaries;
(iv) there are no agreements or arrangements under which the
Company or any of its Subsidiaries is obliga
