SUBSCRIPTIONAGREEMENT

EX-10.7 5 v157152_ex10-7.htm
     
 
Name of Subscriber

SUBSCRIPTION AGREEMENT

interCLICK, Inc.
257 Park Avenue South
Suite 602
New York, NY 10010
Attention:  Michael Mathews, Chief Executive Officer

Dear Sirs:

1.1          Subscription.  I, the undersigned investor (the “Investor”), hereby subscribe for and agree to purchase on the terms and conditions contained herein _______________  shares of common stock and ___________ warrants to purchase shares of common stock of interCLICK, Inc., a Delaware corporation (the “Company”), on a one share and ¼ warrant basis.  Each warrant is exercisable at $1.40 per share over a three-year period.  The price per share (and ¼ warrant) is $1.00.  I understand the Company is conducting a private placement offering on a “best efforts, partial all-or-none basis” (the “Offering”) of $2,500,000 minimum and $5,000,000 maximum as described in a Term Sheet dated June 8, 2009 (the “Term Sheet”).

1.2          Subscription Payment.  As payment for this subscription, simultaneously with the execution hereof, I am wire transferring to Harris Cramer LLP (the “Escrow Agent”) the amount of $__________.

2.1          Investor Representations and Warranties. I acknowledge, represent and warrant to, and agree with, the Company as follows:

(a)    I am aware that my investment involves a high degree of risk;

(b)    I acknowledge and am aware that there is no assurance as to the future performance of the Company;

(c)    I am purchasing the securities for my own account for investment and not with a view to or for sale in connection with the distribution of the securities nor with any present intention of selling or otherwise disposing of all or any part of the securities.  I agree that I must bear the economic risk of my investment for an indefinite period of time because, among other reasons, the securities have not been registered under the Securities Act of 1933 (the “Securities Act”) or under the securities laws of any states and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under applicable securities laws of such states or an exemption from such registration is available.  I hereby authorize the Company to place a legend denoting the restriction on the certificates to be issued. I acknowledge that no public market will develop for the Warrants.

 
 
 
 
(d)    I further acknowledge my understanding that the Company’s reliance on such exemptions referred to in subsection (c) above are, in part, based upon the foregoing representations, warranties, and agreements by me and that the statutory basis for such exemptions would not be present, if, notwithstanding such representations, warranties and agreements, I were acquiring the securities for resale on the occurrence or non-occurrence of some pre-determined event. In order to induce the Company to issue and sell the securities subscribed for hereby to me, it is agreed that the Company will have no obligation to recognize the ownership, beneficial or otherwise, of such securities or any part thereof by anyone, except as set forth herein;

(e)    I have the financial ability to bear the economic risk of my investment in the Company (including its possible total loss), have adequate means for providing for my current needs and personal contingencies and have no need for liquidity with respect to my investment in the Company;

(f)    I have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the securities and have obtained, in my judgment, sufficient information from the Company to evaluate the merits and risks of an investment in the Company;

(g)    I:________________

(1)    Have carefully read this Subscription Agreement and the Term Sheet, as well as reports filed by the Company with the Securities and Exchange Commission (the “Reports”) and understand and have evaluated the risks of a purchase of the securities and have relied solely (except as indicated in subsection (2) and (3)) on the information contained in this Subscription Agreement, the Term Sheet and the Reports;

(2)    Have been provided an opportunity to obtain any additional information concerning the offering, the Company and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense; and

(3)    Have been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of the offering and other matters pertaining to this investment.  In addition, as required by Section 517.061(11)(a)(3), Florida Statutes and by Rule 3E-500.05(a) thereunder, I may have, at the offices of the Company, at any reasonable hour, after reasonable prior notice, access to the materials set forth in the Rule which the Company can obtain without unreasonable effort or expense.

 
 
 
 
(h)   If the undersigned is a corporation, trust, partnership, employee benefit plan, individual retirement account, Keogh Plan, or other tax-exempt entity, it is authorized and qualified to become an investor in the Company and the person signing this Subscription Agreement on behalf of such entity has been duly authorized by such entity to do so;

(i)    No representations or warranties have been made to the undersigned by the Company, or any of their respective officers, employees, agents, affiliates or attorneys;

(j)    The information contained in Section 2.2 of this Subscription Agreement is true and correct including any information which I have furnished and furnish to the Company with respect to my financial position and business experience, is correct and complete as of the date of this Subscription Agreement and if there should be any material change in such information prior to acceptance of my subscription, I will furnish such revised or corrected information to the Company;

(k)          I hereby acknowledge and am aware that except for any rescission rights that may be provided under applicable state laws including the three day rights under Florida law, I am not entitled to cancel, terminate or revoke this subscription, and any agreements made in connection herewith shall survive my death or disability;

(l)           I have not received any general solicitation or advertising regarding the purchase of the securities and became aware of this investment through a substantive, pre-existing relationship with the Company; and

(m)         Where applicable, I agree to be bound by any restrictions on resale of the securities required by applicable state laws.

(n)           For a period of one year from the date of this Subscription Agreement, I will not, whether in my own capacity or through a representative, agent or affiliate enter into or effect any “short sales” (as such term is defined in Rule 10a-1 of the Securities Exchange Act of 1934) of the Company’s Common Stock or engage in any similar hedging transactions.

2.2           Investor Representations and Warranties Concerning Suitability, Accredited Investor and Eligible Client Status.  I represent and warrant the following information:

(a)    The following information should be provided by the person making the investment decision whether on his own behalf or on behalf of an entity:

 
(1)
Name of Investor:
  
  Age:
  
     
 
(2)
Name of person making investment decision
     
     
  Age:
  
   
(Print)
    
 
 
 
 

 
(3)
Principal residence address and telephone number:
     
     
     
     

 
(4)
Secondary residence address and telephone number:
     
     
     
     
     
     
     
   
I have no present intention of becoming a resident of any other state or jurisdiction. 
 
 
(5)
Name, address, telephone number and facsimile number of employer or business:
     
     
     
     
     
     
 
 
(i)
Nature of business
  
 
 
(ii)
Position and nature of responsibilities
 

 
(6)
Length of employment or in current position
  

 
(7)
Prior employment, positions or occupations during the past five years (and the inclusive dates of each) are as follows:

 
 
 

Nature of Employment,
or Occupation
  
Position/ Duties
  
From/To
         
         
         
         
         
         

Attach additional pages to answer any questions in greater detail, if necessary.  Each prospective investor should answer the following questions which pertain to income, tax rate, net worth, liquid assets, and non-liquid assets by including spousal contribution even though the investment will be held in single name.
 
 
(8)
Business or professional education and the degree(s) received are as follows:
 
School
  
Degree
  
Year Received
         
         
         
         
         
         
 
 
(b)
Investor Representations.  Must Initial One.  Initial all appropriate spaces on the following pages (please initial only where appropriate).

Sales in the United States or to United States Persons

For Individual Investors Only:

(1)      ______ I certify that I am an accredited investor because I have an individual net worth, or my spouse and I have combined net worth, in excess of $1,000,000.  For purposes of this question, “net worth” means the excess of total assets at fair market value, including home, home furnishings and automobiles, over total liabilities.

(2a)    ______ I certify that I am an accredited investor because I had individual income (exclusive of any income attributable to my spouse) of more than $200,000 in the last two completed years and I reasonably expect to have an individual income in excess of $200,000 this year.

(2b)    ______ Alternatively, my spouse and I have joint income in excess of $300,000 in each applicable year.

 
 
 

(3)      ______ I am a director or executive officer of the Company.

Other Investors:

(4)      ______ The undersigned certifies that it is one of the following:  any bank as defined in Section 3(a)(2) of the Securities 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; insurance company as defined in Section 2(13) of the Securities Act; 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; 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; employee benefit plan within the meaning of Title I 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 advisor, 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.

(5)      ______ The undersigned certifies that it is a private business development company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.

(6)      ______ The undersigned certifies that it is a 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.

(7)      ______ The undersigned certifies that it is a 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 Rule 506(b)(2)(ii) of the Securities Act.

(8)      ______ The undersigned certifies that it is an entity in which all of the equity owners are accredited investors.

Non-United States Persons

(9)      ______ The undersigned certifies that it is not and has not been a U.S. Person as defined by Rule 902 of the Securities Act and is not acquiring the securities for the account or benefit of any U.S. Person.

(10)    ______ The undersigned certifies that the securities are being purchased in an offshore transaction as defined by Rule 902 of the Securities Act.

 
 
 

(11) ______ The undersigned certifies that it is acquiring the securities for investment and without a view to distribution.

3.            Closing Conditions.

(a)           On the date this Subscription Agreement is accepted by the Company (the “Closing” or the “Closing Date”), the Investor shall deliver or cause to be delivered to the Company the following:

(1)    this Subscription Agreement duly executed by such Investor;

(2)    the Investor’s payment for the securities; and

(3)    the Registration Rights Agreement duly executed by such Investor.

(b)           On or before the Closing Date, the Company shall deliver or cause to be delivered to each Investor the following:

(1)    this Subscription Agreement duly executed by the Company;

(2)    certificates for the securities purchased registered in the name of the Investor;

(3)    the Registration Rights Agreement duly executed by the Company.
 
(c)    The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:

(1)    the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Investor contained herein;

(2)    all obligations, covenants and agreements of the Investor required to be performed at or prior to the Closing shall have been performed; and

(3)    the delivery by the Investors of the items set forth in Section 3(a) of this Subscription Agreement.

 
 
 
 
(d)           The respective obligations of the Investor in connection with the Closing are subject to the following conditions being met:
 
(1)    the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Company contained herein;

(2)    all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;

(3)    the delivery by the Company of the items set forth in Section 3(b) of this Agreement; and

(4)    the Company shall have received a minimum of $2,500,000 of gross proceeds from the Offering.

4.             Indemnification.  I hereby agree to indemnify and hold harmless the Company, its officers, directors, shareholders, employees, agents and attorneys against any and all losses, claims, demands, liabilities and expenses (including reasonable legal or other expenses) incurred by each such person in connection with defending or investigating any such claims or liabilities, whether or not resulting in any liability to such person) to which any such indemnified party may become subject under the Securities Act, under any other statute, at common law or otherwise, insofar as such losses, claims, demands, liabilities and expenses (a) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact made by me and contained in this Subscription Agreement, or (b) arise out of or are based upon any breach of any representation, warranty or agreement contained herein.

5.             Arbitration.  Any controversy, dispute or claim against the Company, its officers, directors or employees arising out of or relating to this Subscription Agreement including the annexed transaction documents, or its interpretation, application, implementation, breach or enforcement which the parties are unable to resolve by mutual agreement, shall be settled by submission by either party of the controversy, claim or dispute to binding arbitration in New York County, New York (unless the parties agree in writing to a different location) before three arbitrators in accordance with the rules of the American Arbitration Association then in effect.  In any such arbitration proceeding, the parties agree to provide all discovery deemed necessary by the arbitrators.  The decision and award made by the arbitrators shall be final, binding and conclusive on all parties to any arbitration proceeding for all purposes, and judgment may be entered thereon in any court having jurisdiction thereof.

6.            Counterparts.  This Subscription Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.  The execution of this Subscription Agreement may be by actual or facsimile signature.

 
 
 
 
7.             Benefit.   This Subscription Agreement shall be binding upon and inure to the benefit of the parties hereto and their legal representatives, successors and assigns.

8.             Notices and Addresses.   All notices, offers, acceptance and any other acts under this Agreement (except payment) shall be in writing, and shall be sufficiently given if delivered to the addressees in person, by Federal Express or similar overnight next business day delivery, or by facsimile delivery followed by overnight next business day delivery, as follows:

Investor:
At the address designated
 
in Section 2.2 of this
 
Subscription Agreement
   
The Company:
interCLICK, Inc.
 
257 Park Avenue South, Suite 602
 
New York, NY 10010
 
Attention: Michael Mathews, Chief Executive Officer
 
Facsimile: (646) 558-1227

or to such other address as any of them, by notice to the other may designate from time to time.  The transmission confirmation receipt from the sender’s facsimile machine shall be evidence of successful facsimile delivery.  Time shall be counted from the date of transmission.

9.             Governing Law. This Subscription Agreement and any dispute, disagreement, or issue of construction or interpretation arising hereunder whether relating to its execution, its validity, the obligations provided therein or performance shall be governed or interpreted according to the laws of Delaware without giving effect to the principles of choice of laws thereof.

10.           Oral Evidence. This Subscription Agreement constitutes the entire Subscription Agreement between the parties and supersedes all prior oral and written agreements between the parties hereto with respect to the subject matter hereof.  Neither this Subscription Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, except by a statement in writing signed by the party or parties against which enforcement or the change, waiver discharge or termination is sought.

11.           Section Headings.  Section headings herein have been inserted for reference only and shall not be deemed to limit or otherwise affect, in any matter, or be deemed to interpret in whole or in part any of the terms or provisions of this Subscription Agreement.

12.           Survival of Representations, Warranties and Agreements. The representations, warranties and agreements contained herein shall survive the delivery of, and payment for, the securities.

13.           Acceptance of Subscription.  The Company may accept this Subscription Agreement at any time for all or any portion of the securities subscribed for by executing a copy hereof as provided and notifying me within a reasonable time thereafter.

 
 
 

SALES IN FLORIDA
Florida Law Provides That When Sales Are Made To Five Or More Persons In Florida, Any Sale Made In Florida Is Voidable By The Purchaser Within Three Days After The First Tender Of Consideration Is Made By Such Purchaser To The Company, An Agent Of The Company Or An Escrow Agent Or Within Three Days After The Availability Of That Privilege Is Communicated To Such Purchaser, Whichever Occurs Later.  Payments For Terminated Subscriptions Voided By Purchasers As Provided For In This Paragraph Will Be Promptly Refunded Without Interest. Notice Should Be Given To The Company To The Attention Of Michael Mathews At The Address Set Forth On The Cover Page Of This Subscription Agreement.

Individual Investors

     
Social Security Number
Print Name of Investor No. 1
  
     
     
 
Signature of Investor No. 1
  
 
     
Social Security Number
Print Name of Investor No. 2
  
     
     
 
Signature of Investor No. 2
  
     
 
Manner in which securities are to be held:

_____ Individual Ownership
_____ Partnership
   
_____ Tenants-in-Common
_____ Trust
   
_____ Joint Tenant With Right of Survivorship
_____ Corporation
   
_____ Tenants by the Entirety
_____ Employee Benefit Plan
   
_____ Community Property
_____ Other (please indicate)
   
_____ Separate Property
  
 
 
Corporate or Other Entity

     
Federal ID Number
  
Print Name of Entity
     
 
By:
  
   
Signature, Title

DATED: __________________________

By signing below, the undersigned accepts the foregoing subscription and agrees to be bound by its terms.

interCLICK, Inc.

By:
    
Dated:  _________, 2009
 
  Michael Mathews
  Chief Executive Officer