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Exhibit 10(x)
SUBSCRIPTION AGREEMENT
____________, 2000
New Generation Holdings, Inc.
245 Park Avenue, 39th Floor
New York, New York 10167
Gentlemen:
The undersigned investor (the "INVESTOR") hereby agrees with you as
follows:
1. The Investor hereby agrees to purchase ____________ shares (the
"SHARES") of Common Stock, par value $.001 per share, of New Generation
Holdings, Inc., a Delaware corporation (the "COMPANY") for an aggregate purchase
price of $_______________.
2. In connection with its purchase the Investor shall deliver (or has
delivered), in addition to two (2) executed copies of this Agreement, its check,
subject to collection, for the full amount of the purchase price of the Shares
payable to the order of "New Generation Holdings, Inc." in the amount set forth
at the end of this Agreement. In lieu of delivery of a check, the Investor may
send a wire transfer of immediately available funds and can get appropriate wire
transfer instructions from the Company. The Investor agrees and acknowledges
that this Subscription Agreement is and shall be irrevocable and that the
purchase price is due and payable upon execution hereof.
3. The Investor represents, warrants and agrees as follows, and the
Investor acknowledges that the Investor has full knowledge that the Company
intends to rely on such representations, warranties and agreements:
(a) The Investor understands that this transaction has not
been reviewed or passed upon by any governmental agency, Federal or state; that
the Investor must bear the economic risk of all or part of its investment for an
indefinite period; that the Shares have not been registered under the United
States Securities Act of 1933, as amended (the "1933 ACT") and, therefore,
cannot be resold or otherwise disposed of unless subsequently registered under
the 1933 Act or unless an exemption from such registration is available; that
the Investor is purchasing the Shares for investment for the account of the
Investor and not with any view toward resale or other distribution thereof; that
the Investor agrees not to resell or otherwise dispose of all or any part of the
Shares, except as permitted by law, including, without limitation, any and all
applicable regulations under the 1933 Act. For the foregoing reasons, an
Investor will be required to retain ownership of the Shares and bear the
economic risk of its investment for an indefinite period.
(b) The Investor has no need for liquidity in connection with
its purchase of the Shares.
(c) The Investor was not organized for the specific purpose of
acquiring the Shares.
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(d) The Investor currently has and had immediately prior to
receipt of any offer regarding the Company such knowledge and experience in
financial and business matters as to be able to evaluate the merits and risks of
an investment in the Shares.
(e) The Investor is not acquiring the Shares with a view to
realizing any benefits under United States Federal income tax laws, and no
representations have been made to the Investor that any such benefits will be
available as a result of the Investor's acquisition, ownership, or disposition
of the Shares.
(f) One or more of the categories set forth below correctly
and in all respects describes each Investor, and the Investor has so indicated
by signing its name, or by directing its duly authorized representatives to sign
in its name and on its behalf, by circling the category or categories which so
describe it or, if no such categories are applicable, it has so indicated by
signing its name in the blank line that immediately follows:
(i) The Investor is a natural person whose net worth,
either individually or jointly with such person's spouse, at the time of its
purchase, exceeds $1,000,000.
(ii) The Investor is a natural person who had
individual income in excess of $200,000 (or joint income with the Investor's
spouse in excess of $300,000) in 1998 and 1999 and reasonably expects to have
individual income in excess of $200,000 (or joint income with the Investor's
spouse in excess of $300,000) in 2000.
(iii) The Investor is a director or executive of the
Company.
(iv) The Investor is an entity which falls within one
of the following categories of institutional accredited investors set forth in
Rule 501(a) of Regulation D ("Regulation D") under the 1933 Act (sign on blank
line following category of institutional accredited investor which describes the
Investor):
(A) A bank as defined in Section 3(a)(2) of
the 1933 Act or a savings and loan or other institution as defined in Section
3(a)(5)(A) of the 1933 Act, whether acting in regard to this investment in its
individual or a fiduciary capacity.
(B) An insurance company as defined in
Section 2(13) of the 1933 Act.
(C) An investment company registered under
the Investment Company Act of 1940.
(D) A business development company as
defined in Section 2(a)(48) of the Investment Company Act of 1940.
(E) A 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.
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(F) An employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974, if
the investment decision regarding this investment was made by a bank, insurance
company or registered investment adviser, acting as a plan fiduciary, as defined
in Section 3(21) of such act.
(G) An employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974 with
total assets in excess of $5,000,000, whether or not the investment decision
regarding this investment was made by a bank, insurance company or registered
investment adviser.
(H) Private Business Development Company as
defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
(I) An 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 Shares, with total assets in excess of $5,000,000.
(J) The Investor is an entity in which all
of the equity holders are accredited investors as set forth in Rule 501(a)(8) of
Regulation D and described in one or more of the categories set forth above in
the subparagraphs of this Paragraph.
4. The Investor understands that its answers to the questions set forth
herein will be kept confidential by the Company. However, the Investor agrees
that the Company may present this Subscription Agreement to those parties that
it deems appropriate if called upon to establish the Company's entitlement to a
limited or private offering exemption under the 1933 Act or any applicable state
securities law.
5. The Investor agrees that upon the request of the Company, at any
time prior to closing of the transactions contemplated hereby, the Investor
shall promptly execute and deliver to the Company any agreements or instruments
as it may reasonably request in order to effect the purchase and issuance of the
Shares.
6. The Company shall have the right, in its sole discretion, to imprint
upon the Shares any legends relating to the 1933 Act or state securities law or
other applicable law as it deems necessary or advisable; PROVIDED, HOWEVER, that
the Company agrees to remove such legend and bear all costs and expenses of
removal upon the registration of the Shares or upon the applicability of an
exemption from registration with respect to such Shares.
7. The representations, warranties and agreements herein contained are
made and given for the benefit of the Company and to induce the Company to sell
and issue the Shares to the Investor and each constitutes a material portion of
the consideration therefor. The undersigned shall not be entitled to cancel,
terminate or revoke this subscription except as permitted by applicable law.
8. Each party hereto will pay its own expenses relating to this
Subscription Agreement and the purchase of the Shares by the Investor hereunder.
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9. This Subscription Agreement or any term hereof may not be changed,
waived, discharged or terminated except with the prior written consent of the
Investor and the Company.
10. This Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
principles of conflicts of law applicable thereto.
11. This Subscription Agreement (i) shall be binding upon the Investor
and the legal representatives, successors and assigns of the Investor, (ii)
shall survive the closing of the transactions contemplated hereby and (iii)
shall, if the Investor consists or more than one person, be the joint and
several obligation of all such persons. This Subscription Agreement may be
executed in one or more duplicate originals which shall, either singly or
together, serve to represent one agreement between the parties.
12. The Company agrees that the proceeds in respect of the subscription
for the Shares shall be contributed by the Company to the Company's wholly-owned
subsidiary, New Generation Partners, Inc. for use by such subsidiary for general
working capital purposes.
13. This Subscription Agreement shall not bind the Company until
accepted by it.
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IN WITNESS WHEREOF, the Investor has executed this
Subscription Agreement on the day and year first above written.
_________________________________
[Name]
The Investor hereby agrees to purchase shares of Common Stock for an aggregate
purchase price of $______________.
THE FOREGOING SUBSCRIPTION AGREEMENT IS HEREBY AGREED TO BY THE COMPANY:
NEW GENERATION HOLDINGS, INC.
By: ___________________________ Dated: __________________________
Name:
Title:
