Blueprint
SUBSCRIPTION
AGREEMENT
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. THIS
INVESTMENT IS SUITABLE ONLY FOR PERSONS WHO CAN BEAR THE ECONOMIC
RISK FOR AN INDEFINITE PERIOD OF TIME AND WHO CAN AFFORD TO LOSE
THEIR ENTIRE INVESTMENT. FURTHERMORE, INVESTORS MUST UNDERSTAND
THAT SUCH INVESTMENT IS ILLIQUID AND IS EXPECTED TO CONTINUE TO BE
ILLIQUID FOR AN INDEFINITE PERIOD OF TIME. NO PUBLIC MARKET EXISTS
FOR THE SECURITIES, AND NO PUBLIC MARKET IS EXPECTED TO DEVELOP
FOLLOWING THIS OFFERING.
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY
STATE SECURITIES OR BLUE SKY LAWS AND ARE BEING OFFERED AND SOLD IN
RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE
ACT AND STATE SECURITIES OR BLUE SKY LAWS. ALTHOUGH AN
OFFERING STATEMENT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION (THE “SEC”), THAT OFFERING STATEMENT DOES
NOT INCLUDE THE SAME INFORMATION THAT WOULD BE INCLUDED IN A
REGISTRATION STATEMENT UNDER THE ACT. THE SECURITIES HAVE NOT BEEN
APPROVED OR DISAPPROVED BY THE SEC, ANY STATE SECURITIES COMMISSION
OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING
AUTHORITIES PASSED UPON THE MERITS OF THIS OFFERING OR THE ADEQUACY
OR ACCURACY OF THE SUBSCRIPTION AGREEMENT OR ANY OTHER MATERIALS OR
INFORMATION MADE AVAILABLE TO SUBSCRIBER IN CONNECTION WITH THIS
OFFERING OVER THE ONLINE OFFERING PAGE MAINTAINED BY THE COMPANY
(THE “WEBSITE”) OR THROUGH SAGEWORKS CAPITAL, LLC (THE
“BROKER”). ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
INVESTORS WHO ARE NOT “ACCREDITED INVESTORS” (AS THAT
TERM IS DEFINED IN SECTION 501 OF REGULATION D PROMULGATED UNDER
THE ACT) ARE SUBJECT TO LIMITATIONS ON THE AMOUNT THEY MAY INVEST,
AS SET OUT IN SECTION 4. THE COMPANY IS RELYING ON THE
REPRESENTATIONS AND WARRANTIES SET FORTH BY EACH SUBSCRIBER IN THIS
SUBSCRIPTION AGREEMENT AND THE OTHER INFORMATION PROVIDED BY
SUBSCRIBER IN CONNECTION WITH THIS OFFERING TO DETERMINE THE
APPLICABILITY TO THIS OFFERING OF EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE ACT.
PROSPECTIVE INVESTORS MAY NOT TREAT THE FOLLOWING AS LEGAL ADVICE
OR TAX ADVICE: CONTENTS OF THE SUBSCRIPTION AGREEMENT, THE OFFERING
CIRCULAR OR ANY OF THE OTHER MATERIALS AVAILABLE ON THE PLATFORM
(COLLECTIVELY, THE “OFFERING MATERIALS”) OR ANY PRIOR
OR SUBSEQUENT COMMUNICATIONS FROM THE COMPANY OR ANY OF ITS
OFFICERS, EMPLOYEES OR AGENTS (INCLUDING “TESTING THE
WATERS” MATERIALS). WE ARE NOT PROVIDING INVESTMENT, TAX OR
LEGAL ADVICE IN ANY OFFERING MATERIALS. IN MAKING AN INVESTMENT DECISION,
EACH PROSPECTIVE INVESTOR SHOULD CONSULT THE INVESTOR’S OWN
COUNSEL, ACCOUNTANT AND OTHER PROFESSIONAL ADVISOR
AS TO INVESTMENT, LEGAL, TAX AND OTHER RELATED MATTERS CONCERNING
THE INVESTOR’S PROPOSED INVESTMENT.
THE OFFERING MATERIALS MAY CONTAIN FORWARD-LOOKING STATEMENTS AND
INFORMATION RELATING TO, AMONG OTHER THINGS, THE COMPANY, ITS
BUSINESS PLAN AND STRATEGY, AND ITS INDUSTRY. THESE
FORWARD-LOOKING STATEMENTS ARE BASED ON THE BELIEFS OF, ASSUMPTIONS
MADE BY, AND INFORMATION CURRENTLY AVAILABLE TO THE COMPANY’S
MANAGEMENT. WHEN USED IN THE OFFERING MATERIALS, THE WORDS
“ESTIMATE,” “PROJECT,”
“BELIEVE,” “ANTICIPATE,”
“INTEND,” “EXPECT” AND SIMILAR EXPRESSIONS
ARE INTENDED TO IDENTIFY FORWARD-LOOKING STATEMENTS, WHICH
CONSTITUTE FORWARD LOOKING STATEMENTS. THESE STATEMENTS REFLECT
MANAGEMENT’S CURRENT VIEWS WITH RESPECT TO FUTURE EVENTS AND
ARE SUBJECT TO RISKS AND UNCERTAINTIES THAT COULD CAUSE THE
COMPANY’S ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE
CONTAINED IN THE FORWARD-LOOKING STATEMENTS. INVESTORS ARE
CAUTIONED NOT TO PLACE UNDUE RELIANCE ON THESE FORWARD-LOOKING
STATEMENTS, WHICH SPEAK ONLY AS OF THE DATE ON WHICH THEY ARE MADE.
THE COMPANY DOES NOT UNDERTAKE ANY OBLIGATION TO REVISE OR UPDATE
THESE FORWARD-LOOKING STATEMENTS TO REFLECT EVENTS OR CIRCUMSTANCES
AFTER SUCH DATE OR TO REFLECT THE OCCURRENCE OF UNANTICIPATED
EVENTS.
THE COMPANY MAY NOT BE OFFERING THE SECURITIES IN EVERY
STATE. THE OFFERING MATERIALS DO NOT CONSTITUTE AN OFFER OR
SOLICITATION IN ANY STATE OR JURISDICTION IN WHICH THE SECURITIES
ARE NOT BEING OFFERED.
THE INFORMATION PRESENTED IN THE OFFERING MATERIALS WAS PREPARED BY
THE COMPANY SOLELY FOR THE USE BY PROSPECTIVE INVESTORS IN
CONNECTION WITH THIS OFFERING. NOTHING CONTAINED IN THE OFFERING MATERIALS IS OR
SHOULD BE RELIED UPON AS A PROMISE OR REPRESENTATION AS TO THE
FUTURE PERFORMANCE OF THE COMPANY.
THE COMPANY RESERVES THE RIGHT IN ITS SOLE DISCRETION AND FOR ANY
REASON WHATSOEVER TO MODIFY, AMEND AND/OR WITHDRAW ALL OR A PORTION
OF THE OFFERING AND/OR ACCEPT OR REJECT IN WHOLE OR IN PART ANY
PROSPECTIVE INVESTMENT IN THE SECURITIES OR TO ALLOT TO ANY
PROSPECTIVE INVESTOR LESS THAN THE AMOUNT OF SECURITIES SUCH
INVESTOR DESIRES TO PURCHASE. EXCEPT AS OTHERWISE INDICATED,
THE OFFERING MATERIALS SPEAK AS OF THEIR DATE. NEITHER THE DELIVERY
NOR THE PURCHASE OF THE SECURITIES SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE THAT DATE.
55 5th
Avenue, Suite 1702
Ladies
and Gentlemen:
1. Subscription.
(a) The
undersigned (“Subscriber”) hereby irrevocably
subscribes for and agrees to purchase Common Stock (the
“Securities”), of Bitzumi, Inc., a Delaware Corporation
(the “Company”), at a purchase price of $2.50 per share
of Common Stock (the “Per Security Price”), upon the
terms and conditions set forth herein. There is no minimum
subscription. The rights of the Common Stock are as set forth in
Articles of Organization and Bylaws, which are Exhibits to the
Offering Statement of the Company filed with the SEC (the
“Offering Statement”).
(b)
Subscriber understands that the Securities are being offered
pursuant to an offering circular dated __________ (the
“Offering Circular”) filed with the SEC as part of the
Offering Statement. By executing this Subscription Agreement,
Subscriber acknowledges that Subscriber has received this
Subscription Agreement, copies of the Offering Circular and
Offering Statement including exhibits thereto and any other
information required by the Subscriber to make an investment
decision.
(c) The Subscriber’s subscription may be accepted or rejected
in whole or in part, at any time prior to the Closing Date (as
hereinafter defined), by the Company at its sole discretion. In
addition, the Company, at its sole discretion, may allocate to
Subscriber only a portion of the number of Securities Subscriber
has subscribed for. The Company will notify Subscriber whether this
subscription is accepted (whether in whole or in part) or rejected.
If Subscriber’s subscription is rejected, Subscriber’s
payment (or portion thereof if partially rejected) will be returned
to Subscriber without interest and all of Subscriber’s
obligations hereunder shall terminate.
(d) The aggregate number of Securities sold shall not exceed
4,000,000 (the “Maximum Offering”). The Company may
accept subscriptions until _________, unless otherwise extended by
the Company in its sole discretion in accordance with applicable
SEC regulations for such other period required to sell the Maximum
Offering (the “Termination Date”). Providing that
subscriptions for 400,000 Securities are received (the
“Minimum Offering”), the Company may elect at any time
to close this offering, on a date at or prior to the Termination
Date (“Closing Date”).
(e) In
the event of rejection of this subscription in its entirety, or in
the event the sale of the Securities (or any portion thereof) is
not consummated for any reason, this Subscription Agreement shall
have no force or effect, except for Section 5 hereof, which shall
remain in force and effect.
(f) The
terms of this Subscription Agreement shall be binding upon
Subscriber and its transferees, heirs, successors and assigns
(collectively, “Transferees”); provided that for any
such transfer to be deemed effective, the Transferee shall have
executed and delivered to the Company in advance an instrument in a
form acceptable to the Company in its sole discretion, pursuant to
which the proposed Transferee shall be acknowledge, agree, and be
bound by the representations and warranties of Subscriber, terms of
this Subscription Agreement.
2. Purchase Procedure.
(a)
Payment. The
purchase price for the Securities shall be paid simultaneously with
the execution and delivery to the Company of the signature page of
this Subscription Agreement. Subscriber shall payment for the
aggregate purchase price of the Securities by ACH electronic
transfer or wire transfer to an account designated by the Company,
or otherwise as instructed in the Company’s
Website.
(b) Escrow
arrangements. Payment for the
Securities shall be received by Prime Trust (the
“Escrow Agent”) from the undersigned by transfer of
immediately available funds at least two days prior to the Closing
Date, in the amount as set forth on the signature page hereto. Upon
such Closing Date, the Escrow Agent shall release such funds to the
Company. The undersigned shall receive notice and evidence of the
digital entry of the number of the Securities owned by undersigned
reflected on the books and records of the Company and verified
by Colonial Stock
Transfer Company Inc., (the
“Transfer Agent”), which books and records shall bear a
notation that the Securities were sold in reliance upon Regulation
A.
3. Representations and Warranties of the
Company.
The
Company represents and warrants to Subscriber that the following
representations and warranties are true and complete in all
material respects as of the date of the Closing Date, except as
otherwise indicated. For purposes of this Agreement, an individual
shall be deemed to have “knowledge” of a particular
fact or other matter if such individual is actually aware of such
fact. The Company will be deemed to have “knowledge” of
a particular fact or other matter if one of the Company’s
current officers has, or at any time had, actual knowledge of such
fact or other matter.
(a)
Organization and
Standing. The Company is a corporation duly formed, validly
existing and in good standing under the laws of the State of
Delaware. The Company has all requisite power and authority to own
and operate its properties and assets, to execute and deliver this
Subscription Agreement and any other agreements or instruments
required hereunder. The Company is duly qualified and is authorized
to do business and is in good standing as a foreign corporation in
all jurisdictions in which the nature of its activities and of its
properties (both owned and leased) makes such qualification
necessary, except for those jurisdictions in which failure to do so
would not have a material adverse effect on the Company or its
business.
(b)
Issuance of the
Securities. The issuance, sale and delivery of the
Securities in accordance with this Subscription Agreement has been
duly authorized by all necessary corporate action on the part of
the Company. The Securities, when so issued, sold and delivered
against payment therefor in accordance with the provisions of this
Subscription Agreement, will be duly and validly issued, fully paid
and non-assessable.
(c)
Authority for
Agreement. The execution and delivery by the Company of this
Subscription Agreement and the consummation of the transactions
contemplated hereby (including the issuance, sale and delivery of
the Securities) are within the Company’s powers and have been
duly authorized by all necessary corporate action on the part of
the Company. Upon full execution hereof, this Subscription
Agreement shall constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies and
(iii) with respect to provisions relating to indemnification and
contribution, as limited by considerations of public policy and by
federal or state securities laws.
(d)
No filings.
Assuming the accuracy of the Subscriber’s representations and
warranties set forth in Section 4 hereof, no order, license,
consent, authorization or approval of, or exemption by, or action
by or in respect of, or notice to, or filing or registration with,
any governmental body, agency or official is required by or with
respect to the Company in connection with the execution, delivery
and performance by the Company of this Subscription Agreement
except (i) for such filings as may be required under Regulation A
or under any applicable state securities laws, (ii) for such other
filings and approvals as have been made or obtained, or (iii) where
the failure to obtain any such order, license, consent,
authorization, approval or exemption or give any such notice or
make any filing or registration would not have a material adverse
effect on the ability of the Company to perform its obligations
hereunder.
(e)
Capitalization. The
authorized and outstanding units securities of the Company
immediately prior to the initial investment in the Securities is as
set forth “Securities being Offered” in the Offering
Circular. Except as set forth in the Offering Circular, there are
no outstanding options, warrants, rights (including conversion or
preemptive rights and rights of first refusal), or agreements of
any kind (oral or written) for the purchase or acquisition from the
Company of any of its securities.
(f)
Financial
statements. Complete copies of the Company’s financial
statements consisting of the balance sheets of the Company as at
September 30, 2017, and the related statements of income,
stockholders’ equity and cash flows since June 13, 2017
(inception) (the “Financial Statements”) have been made
available to the Subscriber and appear in the Offering Circular.
The Financial Statements are based on the books and records of the
Company and fairly present in all material respects the financial
condition of the Company as of the respective dates they were
prepared and the results of the operations and cash flows of the
Company for the periods indicated. Rosenberg Rich Baker Berman & Company,
which has audited the Financial Statements, is an independent
accounting firm within the rules and regulations adopted by the
SEC.
(g)
Proceeds. The
Company shall use the proceeds from the issuance and sale of the
Securities as set forth in “Use of Proceeds to issuer”
in the Offering Circular.
(h) Litigation. There is no pending
action, suit, proceeding, arbitration, mediation, complaint, claim,
charge or investigation before any court, arbitrator, mediator or
governmental body, or to the Company’s knowledge, currently
threatened in writing (a) against the Company or (b) against any
consultant, officer, manager, director or key employee of the
Company arising out of his or her consulting, employment or board
relationship with the Company or that could otherwise materially
impact the Company.
4. Representations and Warranties of Subscriber. By
executing this Subscription Agreement, Subscriber (and, if
Subscriber is purchasing the Securities subscribed for hereby in a
fiduciary capacity, the person or persons for whom Subscriber is so
purchasing) represents and warrants, which representations and
warranties are true and complete in all material respects as of
such Subscriber’s Closing Date:
(a)
Requisite Power and
Authority. Such Subscriber has all necessary power and
authority under all applicable provisions of law to execute and
deliver this Subscription Agreement and other agreements required
hereunder and to carry out their provisions. All action on
Subscriber’s part required for the lawful execution and
delivery of this Subscription Agreement and other agreements
required hereunder have been or will be effectively taken prior to
the Closing Date. Upon their execution and delivery, this
Subscription Agreement and other agreements required hereunder will
be valid and binding obligations of Subscriber, enforceable in
accordance with their terms, except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors’
rights and (b) as limited by general principles of equity that
restrict the availability of equitable remedies.
(b)
Investment
Representations. Subscriber understands that the Securities
have not been registered under the Securities Act of 1933, as
amended (the “Securities Act”). Subscriber also
understands that the Securities are being offered and sold pursuant
to an exemption from registration contained in the Securities Act
based in part upon Subscriber’s representations contained in
this Subscription Agreement.
(c)
Illiquidity and Continued
Economic Risk. Subscriber acknowledges and agrees that there
is no ready public market for the Securities and that there is no
guarantee that a market for their resale will ever exist.
Subscriber must bear the economic risk of this investment
indefinitely and the Company has no obligation to list the
Securities on any market or take any steps (including registration
under the Securities Act or the Securities Exchange Act of 1934, as
amended) with respect to facilitating trading or resale of the
Securities. Subscriber acknowledges that Subscriber is able to bear
the economic risk of losing Subscriber’s entire investment in
the Securities. Subscriber also understands that an investment in
the Company involves significant risks and has taken full
cognizance of and understands all of the risk factors relating to
the purchase of Securities.
(d)
Accredited Investor Status
or Investment Limits. Subscriber represents that
either:
(i)
Subscriber is an “accredited investor” within the
meaning of Rule 501 of Regulation D under the Securities Act.
Subscriber represents and warrants that the information set forth
in response to question (c) on the signature page hereto concerning
Subscriber is true and correct; or
(ii)
The purchase price set out in paragraph (b) of the signature page
to this Subscription Agreement, together with any other amounts
previously used to purchase Securities in this offering, does not
exceed 10% of the greater of the Subscriber’s annual income
or net worth.
Subscriber
represents that to the extent it has any questions with respect to
its status as an accredited investor, or the application of the
investment limits, it has sought professional advice.
(e)
Shareholder
information. Within five days after receipt of a request
from the Company, the Subscriber hereby agrees to provide such
information with respect to its status as a shareholder (or
potential shareholder) and to execute and deliver such documents as
may reasonably be necessary to comply with any and all laws and
regulations to which the Company is or may become subject.
Subscriber further agrees that in
the event it transfers any Securities, it will require the
transferee of such Securities to agree to provide such information
to the Company as a condition of such transfer.
(f)
Company
Information. Subscriber understands that the Company is
subject to all the risks that apply to early-stage companies,
whether or not those risks are explicitly set out in the Offering
Circular. Subscriber has had such opportunity as it deems necessary
(which opportunity may have presented through online chat or
commentary functions) to discuss the Company’s business,
management and financial affairs with managers, officers and
management of the Company and has had the opportunity to review the
Company’s operations and facilities. Subscriber has also had
the opportunity to ask questions of and receive answers from the
Company and its management regarding the terms and conditions of
this investment. Subscriber acknowledges that except as set forth
herein, no representations or warranties have been made to
Subscriber, or to Subscriber’s advisors or representative, by
the Company or others with respect to the business or prospects of
the Company or its financial condition.
(g)
Valuation. The
Subscriber acknowledges that the price of the Securities was set by
the Company on the basis of the Company’s internal valuation
and no warranties are made as to value. The Subscriber further
acknowledges that future offerings of Securities may be made at
lower valuations, with the result that the Subscriber’s
investment will bear a lower valuation.
(h)
Domicile.
Subscriber maintains Subscriber’s domicile (and is not a
transient or temporary resident) at the address shown on the
signature page.
(i)
No Brokerage Fees.
There are no claims for brokerage commission, finders’ fees
or similar compensation in connection with the transactions
contemplated by this Subscription Agreement or related documents
based on any arrangement or agreement binding upon
Subscriber.
(j)
Foreign Investors.
If Subscriber is not a United States person (as defined by
Section 7701(a)(30) of the Internal Revenue Code of 1986, as
amended), 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 Securities or
any use of this Subscription Agreement, including (i) the
legal requirements within its jurisdiction for the purchase of the
Securities, (ii) any foreign exchange restrictions applicable
to such purchase, (iii) any governmental or other consents
that may need to be obtained, and (iv) the income tax and
other tax consequences, if any, that may be relevant to the
purchase, holding, redemption, sale, or transfer of the Securities.
Subscriber’s subscription and payment for and continued
beneficial ownership of the Securities will not violate any
applicable securities or other laws of the Subscriber’s
jurisdiction.
5.
Survival of
Representations and Indemnity. The representations,
warranties and covenants made by the Subscriber herein shall
survive the Termination Date of this Agreement.
6.
Governing Law;
Jurisdiction. This Subscription Agreement shall be governed
and construed in accordance with the laws of the State of New
York.
EACH OF
THE SUBSCRIBER AND THE COMPANY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED WITHIN THE
NEW YORK AND NO OTHER PLACE AND IRREVOCABLY AGREES THAT ALL ACTIONS
OR PROCEEDINGS RELATING TO THIS SUBSCRIPTION AGREEMENT MAY BE
LITIGATED IN SUCH COURTS. EACH OF SUBSCRIBER AND THE COMPANY
ACCEPTS FOR ITSELF AND HIMSELF AND IN CONNECTION WITH ITS AND HIS
RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS SUBSCRIPTION
AGREEMENT. EACH OF SUBSCRIBER AND THE COMPANY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN THE MANNER AND IN THE ADDRESS SPECIFIED IN SECTION 8 AND
THE SIGNATURE PAGE OF THIS SUBSCRIPTION AGREEMENT.
EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
SUBSCRIPTION AGREEMENT OR THE ACTIONS OF EITHER PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF,
EACH OF THE PARTIES HERETO ALSO WAIVES ANY BOND OR SURETY OR
SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE
REQUIRED OF SUCH PARTY. EACH OF THE PARTIES HERETO FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER
IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
SUBSCRIPTION AGREEMENT. IN THE EVENT OF LITIGATION, THIS
SUBSCRIPTION AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
7.
Notices. Notice,
requests, demands and other communications relating to this
Subscription Agreement and the transactions contemplated herein
shall be in writing and shall be deemed to have been duly given if
and when (a) delivered personally, on the date of such delivery; or
(b) mailed by registered or certified mail, postage prepaid, return
receipt requested, in the third day after the posting thereof; or
(c) emailed, telecopied or cabled, on the date of such delivery to
the address of the respective parties as follows:
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If to
the Company, to:
Bitzumi,
Inc.
55 5th
Avenue, Suite 1702
New
York, NY 10003
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with a
required copy to:
CrowdCheck
Law, LLP
1423
Leslie Avenue
Alexandria,
VA 22301
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If to a Subscriber, to Subscriber’s address as shown on the
signature page hereto or to such other address as may be specified
by written notice from time to time by the party entitled to
receive such notice. Any notices, requests, demands or other
communications by telecopy or cable shall be confirmed by letter
given in accordance with (a) or (b) above.
8. Miscellaneous.
(a) All
pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of
the person or persons or entity or entities may
require.
(b)
This Subscription Agreement is not transferable or assignable by
Subscriber.
(c) The
representations, warranties and agreements contained herein shall
be deemed to be made by and be binding upon Subscriber and its
heirs, executors, administrators and successors and shall inure to
the benefit of the Company and its successors and
assigns.
(d)
None of the provisions of this Subscription Agreement may be
waived, changed or terminated orally or otherwise, except as
specifically set forth herein or except by a writing signed by the
Company and Subscriber.
(e) In
the event any part of this Subscription Agreement is found to be
void or unenforceable, the remaining provisions are intended to be
separable and binding with the same effect as if the void or
unenforceable part were never the subject of
agreement.
(f) The
invalidity, illegality or unenforceability of one or more of the
provisions of this Subscription Agreement in any jurisdiction shall
not affect the validity, legality or enforceability of the
remainder of this Subscription Agreement in such jurisdiction or
the validity, legality or enforceability of this Subscription
Agreement, including any such provision, in any other jurisdiction,
it being intended that all rights and obligations of the parties
hereunder shall be enforceable to the fullest extent permitted by
law.
(g)
This Subscription Agreement supersedes all prior discussions and
agreements between the parties with respect to the subject matter
hereof and contains the sole and entire agreement between the
parties hereto with respect to the subject matter
hereof.
(h) The
terms and provisions of this Subscription Agreement are intended
solely for the benefit of each party hereto and their respective
successors and assigns, and it is not the intention of the parties
to confer, and no provision hereof shall confer, third-party
beneficiary rights upon any other person.
(i) The
headings used in this Subscription Agreement have been inserted for
convenience of reference only and do not define or limit the
provisions hereof.
(j)
This Subscription Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same
instrument.
(k) If
any recapitalization or other transaction affecting the stock of
the Company is effected, then any new, substituted or additional
securities or other property which is distributed with respect to
the Securities shall be immediately subject to this Subscription
Agreement, to the same extent that the Securities, immediately
prior thereto, shall have been covered by this Subscription
Agreement.
(l) No
failure or delay by any party in exercising any right, power or
privilege under this Subscription Agreement shall operate as a
waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
[SIGNATURE
PAGE FOLLOWS]
BITZUMI, INC.
SUBSCRIPTION AGREEMENT SIGNATURE PAGE
The
undersigned, desiring to purchase Common Stock of Bitzumi, Inc., by
executing this signature page, hereby executes, adopts and agrees
to all terms, conditions and representations of the Subscription
Agreement.
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(a) The
number of Common Stock the undersigned hereby irrevocably
subscribes for is:
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______________
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number of Securities)
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(b) The
aggregate purchase price (based on a purchase price of $2.50 per
Security) for the Common Stock the undersigned hereby irrevocably
subscribes for is:
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$_____________
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aggregate purchase price)
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(c) EITHER
(i) The undersigned is an accredited investor (as that term is
defined in Regulation D under the Securities Act because the
undersigned meets the criteria set forth in the following
paragraph(s) of Appendix A attached hereto:
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______________
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applicable number from Appendix A)
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OR
(ii) The amount set forth in paragraph (b) above (together with any
previous investments in the Securities pursuant to this offering)
does not exceed 10% of the greater of the undersigned’s net
worth or annual income.
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___________
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(d) The
Securities being subscribed for will be owned by, and should be
recorded on the Company’s books as held in the name
of:
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___________________________________________
(print
name of owner or joint owners)
|
|
|
If the
Securities are to be purchased in joint names, both Subscribers
must sign:
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|
________________________________________
Signature
________________________________________
Name
(Please Print)
________________________________________
Email
address
________________________________________
Address
________________________________________
________________________________________
Telephone
Number
________________________________________
Social
Security Number/EIN
________________________________________
Date
|
________________________________________
Signature
________________________________________
Name
(Please Print)
________________________________________
Email
address
________________________________________
Address
________________________________________
________________________________________
Telephone
Number
________________________________________
Social
Security Number
________________________________________
Date
|
* * * *
*
|
This
Subscription is accepted
on
_____________, 20__
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Bitzumi,
Inc.
By:
_______________________________
Name:
Scot Cohen
Title:
Chief Executive Officer
|
APPENDIX A
An accredited investor includes the following categories of
investor:
(1) Any
bank as defined in section 3(a)(2) of the Act, or any savings and
loan association or other institution as defined in section
3(a)(5)(A) of the Act whether acting in its individual or fiduciary
capacity; any broker or dealer registered pursuant to section 15 of
the Securities Exchange Act of 1934; any insurance company as
defined in section 2(a)(13) of the Act; any investment company
registered under the Investment Company Act of 1940 or a business
development company as defined in section 2(a)(48) of that Act; any
Small Business Investment Company licensed by the U.S. Small
Business Administration under section 301(c) or (d) of the Small
Business Investment Act of 1958; any plan established and
maintained by a state, its political subdivisions, 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; any 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;
(2) Any
private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
(3) Any
organization described in section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of
$5,000,000;
(4) Any
director, executive officer, or general partner of the issuer of
the securities being offered or sold, or any director, executive
officer, or general partner of a general partner of that
issuer;
(5) Any
natural person whose individual net worth, or joint net worth with
that person's spouse, exceeds $1,000,000.
(i)
Except as provided in paragraph (a)(5)(ii) of this section, for
purposes of calculating net worth under this paragraph
(a)(5):
(A) The
person's primary residence shall not be included as an
asset;
(B)
Indebtedness that is secured by the person's primary residence, up
to the estimated fair market value of the primary residence at the
time of the sale of securities, shall not be included as a
liability (except that if the amount of such indebtedness
outstanding at the time of sale of securities exceeds the amount
outstanding 60 days before such time, other than as a result of the
acquisition of the primary residence, the amount of such excess
shall be included as a liability); and
(C)
Indebtedness that is secured by the person's primary residence in
excess of the estimated fair market value of the primary residence
at the time of the sale of securities shall be included as a
liability;
(ii)
Paragraph (a)(5)(i) of this section will not apply to any
calculation of a person's net worth made in connection with a
purchase of securities in accordance with a right to purchase such
securities, provided that:
(A)
Such right was held by the person on July 20, 2010;
(B) The
person qualified as an accredited investor on the basis of net
worth at the time the person acquired such right; and
(C) The
person held securities of the same issuer, other than such right,
on July 20, 2010.
(6) Any
natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that
person's spouse in excess of $300,000 in each of those years and
has a reasonable expectation of reaching the same income level in
the current year;
(7) Any
trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in
§230.506(b)(2)(ii); and
(8) Any
entity in which all of the equity owners are accredited
investors.
