Stock Subscription Agreement
Exhibit 4.35
Biokeys
Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
This
letter represents an agreement between the undersigned (the
“Investor”) and Biokeys
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), related to the Investor’s offer to
purchase shares of the Company’s Common Stock, par value $0.001
per share (“Common
Stock”).
1.
Subscription. Subject to the terms and conditions hereof, the Investor hereby
irrevocably subscribes for and agrees to purchase shares of Common
Stock (the “Subscription ”)
as follows:
| Investor’s name: | ||||||
| (Exact name as it should appear on the stock certificate.) | ||||||
| Price per share of Common Stock (the “Purchase Price”): Forty Cents ($0.40) | ||||||
| Number of shares of Common Stock: | ||||||
| Total Purchase Price: | ||||||
In consideration of the issuance of the number of shares of Common Stock listed above (the
“Shares”), the Investor tenders herewith a wire transfer to the account of the Company
transmitted pursuant to the wire instructions attached hereto as
Exhibit A in the aggregate amount
of the Total Purchase Price listed above.
2.
Acceptance of Subscription. The Investor understands and agrees that this Subscription
is made subject to the unconditional right of the Company to reject this Subscription, in whole or
in part, in its sole and absolute discretion. This Agreement shall become effective upon
acceptance by the Company (the “Acceptance Date”). Any interest earned on funds sent to the
Company pursuant to Section 1 hereof will be for the account of the Company if the Subscription
is accepted. This Subscription is made subject to the terms and conditions set forth below.
3.
Representations and Warranties of the Investor.
(a) Exempt
Transaction; Unregistered Shares. The Investor understands that the
Shares are being offered and sold under one or more exemptions from registration provided
for under the Securities Act of 1933, as amended (the
“Securities Act”), and that the
Company’s reliance upon such exemptions is predicated, in part, upon the Investor’s
representations and warranties set forth in this Agreement. The Investor acknowledges that it
is purchasing the Shares without being offered or furnished any offering literature or
prospectus. The Investor understands that neither the United States Securities and Exchange
Commission, nor any governmental agency charged with the administration of the securities
laws of any state nor any other governmental agency has passed upon or reviewed the merits
or qualifications of, or recommended or approved the offer and sale of the Shares pursuant to
the terms of this Agreement.
(b) Investment Intent; Accreditation; Authority. The Investor is acquiring the
Shares for investment for the Investor’s own account, not as nominee or agent, for
investment and not with a view to, or for resale in connection with, any distribution or public
offering thereof within the meaning of the Securities Act. The Investor is an “accredited
investor” within the meaning of the Securities Act. The Investor has the full right, power,
authority and capacity to enter into and perform this Agreement, the
terms of this Agreement
constitute valid and binding obligations of the Investor enforceable in accordance with their
terms, except as the same may be limited by equitable principles and by bankruptcy,
insolvency, moratorium, and other laws of general application affecting the enforcement of
creditors’ rights.
(c) Knowledge and Experience. The Investor (i) has such knowledge and
experience in financial and business matters as to be capable of evaluating the merits and
risks of the Investor’s prospective investment in the Shares; (ii) has the ability to bear the
economic risks of the Investor’s prospective investment; (iii) has been furnished with and has
had access to such information as the Investor has considered necessary to make a
determination as to the purchase of the Shares together with such additional information as is
necessary to verify the accuracy of the information supplied; and (iv) has had all questions
which have been asked by Investor satisfactorily answered by the Company.
(d) Restricted Securities. The Investor understands that the Shares are “restricted
securities” as such term is defined in Rule 144 of Regulation D promulgated under the
Securities Act (“Rule 144”) and must be held indefinitely unless they are subsequently
registered under applicable state and federal Securities laws or an exemption from such registration is available. The Investor understands that he, she or it may resell the Shares pursuant
to Rule 144 only after the satisfaction of certain requirements, including the requirement that
the Shares be held for at least one year prior to resale.
(e) No Obligation to Register Shares. The Investor further acknowledges and
understands that, except as provided in Section 7 of this Agreement, the Company is under
no obligation to register the Shares. The Investor understands that the certificate evidencing
the Shares will be imprinted with a legend which prohibits the transfer of the Shares unless
they are registered or such registration is not required in the opinion of counsel for the
Company.
(I) Investor Questionnaire. The Investor agrees to complete, execute and deliver to
the Company with this executed Agreement a copy of the Investor Suitability Questionnaire
attached hereto as Exhibit B, the terms of which are incorporated herein.
(g) Foreign Investor Representation. If the Investor is not a “U.S. person” (as such
term is defined in Rule 902(k) of Regulation S promulgated under the Securities Act), such
Investor 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 Shares or any use of this
Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the
Shares, (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 Shares. Such Investor’s subscription and payment for, and its
continued beneficial ownership of the Shares, will not violate any applicable securities or
other laws of its jurisdiction.
(h) Domicile. The Investor is a bona fide resident and domiciliary (not a temporary
or transient resident) of the state indicated on Exhibit B hereto and he, she or it has no
present intention of becoming a resident of any other state or jurisdiction.
(i) No Need for Liquidity. The Investor’s aggregate holding of securities that are
“restricted securities” or otherwise not readily marketable is not excessive in view of the
Investor’s net worth and financial circumstances and the purchase of the Shares will not
cause such commitment to become excessive.
(j) Independent Advice. The Investor understands that the Company urges the
Investor to seek independent advice from professional advisors relating to the suitability for
the Investor of an investment in the Company in view of the Investor’s overall financial
needs and with respect to legal and tax implications of such an investment.
4.
Reliance. The Investor understands that the Company may rely on the foregoing representations and warranties in determining whether to accept this Subscription. If for any
reason any representations and warranties are no longer true and accurate prior to the Acceptance
Date, the Investor will give the Company prompt written notice of the inaccuracy. By signing
below, the Investor represents that the Investor has read and confirmed the truth and accuracy of
each of the foregoing representations and warranties.
5.
Indemnification. The Investor agrees to indemnify and hold harmless the Company and
each of its directors, officers, agents and affiliates from and against any and all loss,
damage or liability due to or arising out of a breach of any representation, warranty or covenant of the
undersigned contained in this Agreement.
6. Restrictive Legends and Stop-Transfer Orders.
(a) Legend. The stock certificate representing the Shares shall bear the following
legend or similar legend (as well as any legends required by applicable state and federal
corporate and securities laws):
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Removal of Legend and Transfer Restrictions. Any legend endorsed on a
certificate pursuant to this Section 6 and the stop transfer instructions with respect to such
legended Shares shall be removed, and the Company shall issue a certificate without such
legend to the holder of such Shares if such Shares are registered under the Securities Act, and
a prospectus meeting the requirements of Section 10 of the Securities Act is available or if
such holder satisfies the requirements of Rule 144(k) or if such holder provides the Company
with an opinion of counsel for such holder of the Securities, reasonably satisfactory to the
Company, to the effect that a sale, transfer or assignment of such Shares may be made
without registration.
7. Registration Rights.
(a)
Piggy-back Rights. If (but without any obligation to do so) the Company
proposes to register any of shares of Common Stock in connection with
any offering of shares of Common Stock solely for cash pursuant to a registration statement under the
Securities Act, other than a registration solely in connection with a transaction under
Rule 145 promulgated under the Securities Act (a
“Public Offering”), the Company shall
promptly give the Investor written notice of such registration, at least 10 business days
prior to the filing of any registration statement under the Securities Act. Upon the written request
of the Investor given within 5 business days after delivery of such written notice by the
Company, the Company shall, subject to the provisions of Section 7(b) below, use its best
efforts to cause to be registered under the Securities Act all of the Shares that the Investor
has requested to be registered.
(b) Underwriting. If the registration statement under which the Company gives
notice under this Section 7 is for an underwritten Public Offering, the Company shall so
advise the Investor. The right of the Investor to registration pursuant to Section 7(a) above
shall be conditioned upon the Investor’s participation in such underwriting and the inclusion
of the Shares in the underwriting to the extent provided herein. The Investor shall (together
with the Company and any other holders of Company securities distributing their securities
through such underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for underwriting by the Company. Notwithstanding any
other provision of this Section 7, if the underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the underwriter may exclude some or
all of the Shares from such registration and underwriting.
(c) Furnish Information. It shall be a condition to the Company’s obligations to
take any action under this Section 7 that the Investor shall
furnish to the Company such information regarding itself, the Shares, and the intended method of disposition of such
securities as shall be required to effect the registration of their Shares. In that
connection, each selling Investor shall be required to represent to
the Company that all such information which is given is both complete and accurate in all material respects when made.
(d) Delay of Registration. The Investor shall have no right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or implementation of this
Section 7.
(e)
Termination of Registration Rights. The Company shall have no obligation to
register the Shares pursuant to this Section 7 with respect to any request or requests made by
any Investor on or after that date which is one year after the Acceptance Date.
8. Price Protection.
(a)
Sales of Common Stock. If at any time after the Acceptance Date and before the
date that is one year after the Acceptance Date, the Company issues or sells any shares of its
Common Stock (other than Excluded Shares (as that term is defined
below)) for a
consideration per share (the “Dilutive Price”) less than the Purchase Price, then the
Company will issue to the Investor a number of shares, if positive, of Common Stock
determined by the following formula:
| X = (A / B) – (C + D) | ||||||
| Where: | X = | the number of shares of Common Stock to be issued to the Investor, rounded to the nearest whole number; | ||||
| A = | the Total Purchase Price; | |||||
| B = | the Dilutive Price; | |||||
| C = | the number of Shares held by the Investor; and | |||||
| D = | the number of shares of Common Stock issued to the Investor pursuant to this Section 8(a) prior to the date of such determination. | |||||
Notwithstanding the foregoing, in no event will the Company be obligated to issue to the
Investor a number of shares of Common Stock pursuant to this Section 8( a) in excess of the
number determined by the following formula:
| X = (A / B) – C | ||||||
| Where: | X = | the number of shares of Common Stock to be issued to the Investor, rounded to the nearest whole number; | ||||
| A = | the Total Purchase Price; | |||||
| B = | Twenty Cents ($0.20); and | |||||
| C = | the number of Shares held by the Investor. | |||||
For
purposes of this Agreement, the term “Excluded
Shares” means: (i) shares of Common
Stock issuable or issued after the Acceptance Date to officers, employees, consultants or
directors of the Company directly or pursuant to a stock purchase, stock option, restricted
stock or other written compensation plan or agreement approved by the Board of Directors of
the Company (the “Board”); (ii) shares of Common Stock issued or issuable after the
Acceptance Date, primarily for non-equity
financing purposes and as approved by the Board,
to financial institutions or lessors in connection with commercial credit arrangements,
equipment financings or similar transactions or to vendors of goods or services or customers;
(iii) shares of Common Stock issuable upon (a) exercise of outstanding warrants, options,
notes or other rights to acquire securities of the Company, (b) conversion of outstanding
shares of the Company’s Preferred Stock, par value $0.01 per share or (c) exchange of
outstanding promissory notes issued by the Company; (iv) capital stock or warrants or
options to purchase capital stock issued in connection with bona fide acquisitions, mergers or
similar transactions, the terms of which are approved by the Board; or (v) shares of Common
Stock issued or issuable by way of dividend or other distribution on Excluded Shares.
(b)
Change of Control. If a Change of Control (as that term is defined below) is
consummated prior to the date that is one year after the Acceptance Date pursuant to which
the Investor, by virtue of its ownership of the Shares, is entitled to receive, either out of
the assets and funds of the Company available for the distribution to the holders of Common
Stock or from the acquiring entity or person, aggregate consideration
(the “Acquisition
Consideration”) with a value less than the product of (x) the number of Shares held by the
Investor immediately prior to the Change of Control and (y) the Purchase Price, then the
Company will issue to the Investor, immediately prior to the consummation of the Change of
Control, a number of shares, if positive, of Common Stock determined by the following
formula:
| X | = | (A/B*C) - (C + D) | ||||
| Where: | X | = | the number of shares of Common Stock to be issued to the Investor, rounded to the nearest whole number; | |||
| A | = | the Total Purchase Price; | ||||
| B | = | the Acquisition Consideration; | ||||
| C | = | the number of Shares held by the Investor; and | ||||
| D | = | the number of shares of Common Stock issued to the Investor pursuant to Section 8(a) |
For
purposes of this Agreement, the term “Change of Control” means (i) a sale or
disposition of all or substantially all of the assets of the Company, and (ii) a merger or
consolidation of the Company with or into any other corporation or corporations or other
entity, or any other corporate reorganization, or any transfer of beneficial ownership (within
the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under
the Securities Exchange Act of 1934, as amended), directly or indirectly, of the outstanding
shares of capital stock of the Company, in a single transaction or a series of related
transactions where the shareholders of the Company immediately prior to such transaction or
series of related transactions do not retain at least fifty percent
(50%) of the voting power in
the Company or any successor or acquiring entity (as applicable).
9. Miscellaneous.
(a) Governing Law. This Agreement, all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of the state of California, without giving effect to principles of
conflicts of law.
(b)
Jurisdiction and Venue. Any legal action or other legal proceeding relating to
this Agreement or the enforcement of any provision of this Agreement shall be brought or
otherwise commenced in any state or federal court located in the county of San Diego,
California. Each party to this Agreement: (i) expressly and irrevocably consents and submits
to the jurisdiction of each state and federal court located in the county of San Diego,
California and each appellate court located in the state of California, in connection with any
such legal proceeding; (ii) agrees that each state and federal court located in the county of
San Diego, California shall be deemed to be a convenient forum; and (iii) agrees not to
assert, by way of motion, as a defense or otherwise, in any such legal proceeding commenced
in any state or federal court located in the county of San Diego, California any claim that
such party is not subject personally to the jurisdiction of such court, that such legal
proceeding has been brought in an inconvenient forum, that the venue of such proceeding is
improper or that this Agreement or the subject matter of this
Agreement may not be enforced in or by such court.
(c) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter hereof and
supersedes all prior oral or written agreements and understandings relating to the subject
matter hereof. No statement, representation, warranty, covenant or agreement of any kind
not expressly set forth in this Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
(d) Notices. All notices and other communications hereunder shall be in writing and
shall be given (and shall be deemed to have been duly given upon receipt) by delivery in
person or facsimile transmission (received at the facsimile machine to which it is transmitted
prior to 5:00 p.m., local time, on a business day in the state of California, for the party to
which it is sent), by courier or express delivery service or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in accordance with
this Section):
| if to the Company: | Biokeys Pharmaceuticals, Inc. | |||
| 0000 Xxxxxx Xxxxxx, Xxxxx 000 | ||||
| Xxx Xxxxx, XX 00000 | ||||
| Attention: Xxxxxxxx X. Xxxxx | ||||
| Facsimile: (000) 000-0000 |
| with a copy to (not to constitute notice): | Xxxxxxx XxXxxxxxx LLP | |||
| 0 Xxxxxxxxxxx Xxxxxx | ||||
| Xxx Xxxxxxxxx, XX 00000-0000 | ||||
| Attention: Xxxxxxx X. Xxxxxx | ||||
| Facsimile: (000) 000-0000 | ||||
| if to the Investor: | To the address set forth in Exhibit B hereto. |
(e)
Modifications and Amendments. The terms and provisions of this Agreement
may be modified or amended only by written agreement executed by the parties hereto.
(f)
Waivers and Consents. The terms and provisions of this Agreement may be
waived, or consent for the departure therefrom granted, only by written document executed
by the party entitled to the benefits of such terms or provisions. No such waiver or consent
shall be deemed to be or shall constitute a waiver or consent with respect to any other terms
or provisions of this Agreement, whether or not similar. Each such waiver or consent shall
be effective only in the specific instance and for the purpose for which it was given, and
shall not constitute a continuing waiver or consent.
(g)
Assignment. This Agreement may not be transferred or assigned without the
prior written consent of the Company and any such transfer or
assignment shall be made only
in accordance with applicable laws and any such consent.
(h)
Severability. In the event that any court of competent jurisdiction shall
determine that any provision, or any portion thereof, contained in
this Agreement shall be
unenforceable in any respect, then such provision shall be deemed limited to the extent that
such court deems it enforceable, and as so limited shall remain in full force and effect. In
the event that such court shall deem any such provision, or portion thereof, wholly
unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full
force and effect.
(I) Interpretation. The parties hereto acknowledge and agree that: (i) each party
and such party’s counsel has reviewed the terms and provisions of this Agreement; (ii) the
rule of construction to the effect that any ambiguities are resolved against the drafting
party shall not be employed in the interpretation of this Agreement; and (iii) the terms and
provisions of this Agreement shall be construed fairly as to the parties hereto and not in
favor of or against any party, regardless of which party was generally responsible for the
preparation of this Agreement. Whenever used herein, the singular number shall include the
plural, the plural shall include the singular, the use of any gender shall include all
persons.
(j) Headings and Captions. The headings and captions of the various subdivisions
of this Agreement are for convenience of reference only and shall in no way modify, or affect
the meaning or construction of any of the terms or provisions hereof.
(k)
No Waiver of Rights, Powers and Remedies. No failure or delay by a party
hereto in exercising any right, power or remedy under this Agreement, and no course of
dealing between the parties hereto, shall operate as a waiver of any such right, power or
remedy of the party. No single or partial exercise of any right, power or remedy under this
Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any
such right, power or remedy, shall preclude such party from any other or further exercise
thereof or the exercise of any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of such party to pursue
other available remedies. No notice to or demand on a party not expressly required under
this Agreement shall entitle the party receiving such notice or demand to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the rights of the
party giving such notice or demand to any other or further action in any circumstances
without such notice or demand.
(l)
Survival of Representations and Warranties. All representations and
warranties made by the parties hereto in this Agreement or in any other agreement, certificate
or instrument provided for or contemplated hereby, shall survive (i) the execution and
delivery hereof, (ii) any investigations made by or on behalf of the parties and (iii) the
closing of the transaction contemplated hereby.
(m)
Expenses. Each of the parties hereto shall pay its own fees and expenses
(including the fees of any attorneys, accountants, appraisers or others engaged by such party)
in connection with this Agreement and the transactions contemplated hereby whether or not
the transactions contemplated hereby are consummated.
(n)
Counterparts. This 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.
IN WITNESS WHEREOF, the undersigned has executed this Agreement this ___day of ___, 2003.
| Investor: | ||||||
| By: | ||||||
| (signature) | ||||||
| Name: | ||||||
| (please print) | ||||||
| Title: | ||||||
| (if applicable) |
Biokeys
Pharmaceuticals, Inc. hereby accepts the foregoing Subscription
subject to the terms
and conditions hereof as of ______ ___, 2003
Biokeys
Pharmaceuticals, Inc.
By:
|
||||
| Xxxxxxxx X. Xxxxx, Chief Executive Officer |
Exhibit
A
Wire
Instructions
The
following information is provided to
assist you in routing wire transfers TO the account
of Biokeys Pharmaceuticals, Inc. at Silicon Valley Bank in the most expeditious manner.
For all
incoming foreign currency wires, please contact Silicon Valley
Bank’s International
Department at (000) 000-0000 for settlement instructions.
DOMESTIC WIRE TRANSFER:
Instruct
the paying financial institution or the payor to route all domestic wire transfers via
FEDWIRE to the following ABA number:
| TO: | SIL VLY BK SJ | |||||
| ROUTING & TRANSIT #: | 000000000 | |||||
| FOR CREDIT OF: | Biokeys, Inc. | |||||
| CREDIT ACCOUNT #: | 3300340922 | |||||
| BY ORDER OF: | [NAME OF SENDER] |
INTERNATIONAL WIRE TRANSFER:
Instruct the paying financial institution to advise their U.S. correspondent to pay as follows:
| PAY TO: | FC — SILICON VALLEY BANK | |||||
| 0000 XXXXXX XXXXX | ||||||
| XXXXX XXXXX, XX 00000, XXX | ||||||
| ROUTING & TRANSIT #: | \\FW000000000 | |||||
| SWIFT CODE: | XXXXXX0X | |||||
| FOR CREDIT OF: | Biokeys, Inc. | |||||
| FINAL CREDIT ACCOUNT #: | FNC — 3300340922 | |||||
| BY ORDER OF: | [NAME OF SENDER] |
IMPORTANT!!!!
Wire
instructions MUST designate the FULL TEN DIGIT ACCOUNT NUMBER listed
above. Wires received by Silicon Valley Bank with INCOMPLETE or
INVALID ACCOUNT
NUMBERS may be delayed and could possibly require return to the sending bank due to new
regulations.
Exhibit
B
Investor Suitability Questionnaire
Biokeys Pharmaceuticals, Inc. (the “Company”)
(All information will be treated confidentially)
(All information will be treated confidentially)
I. INDIVIDUAL INVESTORS ONLY
Personal Information
| Name: |
| Residence Address: |
| Home Telephone Number: |
| Fax Telephone Number |
| Email Address: |
| Social Security Number: |
Delivery Information (Applicable only if different than residence.)
| Name of Institution or Destination: |
| Contact Name: |
| Delivery Address: |
| Account Reference (if applicable): |
| Contact Telephone Number: |
| Contact Fax Telephone Number: |
| Contact Email Address: |
Employment Information
| Occupation: |
| Number of Years: |
| Present Employer: |
| Position/Title: |
| Business Address: |
| Business Telephone: |
Resident Information
Set forth in the space provided below the state(s)/country(ies) in which
you have maintained your principal residence during the past three
years and the date during which
you resided in each state/country.
Are you registered to vote in, or do you have a driver’s license issued by, or do you maintain a
residence in any other state? If yes, in which state(s)?
| Yes | No |
Income
Do you
reasonably expect either your own income from all sources during the current
year to exceed $200,000 or the joint income of you and your spouse (if
married) from all sources during the current year to exceed $300,000?
| Yes | No |
| If not, please specify the amount: |
What percentage of your income as shown above is anticipated to be derived
form sources other than salary?
2
| Was either your yearly income from all sources during each of the last two years in excess of $200,000 or was the joint income of you and your spouse (if married) from all sources during each of such years in excess of $300,000? |
| Yes | No | |||
| If no, please specify the amount for: |
| Last Year: |
| Year Before Last: |
| F. | Net Worth | |
| Will your net worth* as of the date you purchase securities of the Company, together with the net worth of your spouse, be in excess of $1,000,000? |
| Yes | No |
| If not, please specify amount: |
* As used in this questionnaire the term “net worth” means the amount by
which total assets exceed total liabilities. In computing net worth for purposes of this Item 5,
you should value your principal residence at cost, including cost of improvements, or
at that value recently appraised by an institutional lender making a secured loan or otherwise by a
certified appraiser, net of encumbrances.
| G. | Education | |
| Please describe your educational background and degrees obtained, if any. | ||
| H. | Affiliation | |
| If you have any pre-existing personal or business relationship with the Company or any of its officers, directors or controlling persons, please describe the nature and duration of such relationship. | ||
3
| I. | Business and Financial Experience | |
| Please describe in reasonable detail the nature and extent of your business, financial and investment experience which you believe give you the capacity to evaluate the merits and risks of the proposed investment and the capacity to protect your interests. |
| Are you purchasing the securities offered for your own account and for investment purposes only? |
| Yes | No | |||
| If no, please state for whom you are investing and/or the reason for investing. | ||||
4
11. ENTITY INVESTORS ONLY
Entity Name and Contact Information
| Name: |
| Name of Institution or Destination: |
| Address: |
| Account Reference (if applicable): |
| Tax Identification Number (if applicable): |
| Contact Name: |
| Contact Telephone Number: |
| Contact Fax Number: |
| Contact Email Address: |
General Information
| Under the laws of what jurisdiction was the Investor formed? |
Was the Investor formed for the purpose of investing in the securities being offered?
| Yes | No |
Set forth in the space provided below the (i) state(s), if any, in the United
States in which you maintained your principal office during the past two years and the
dates during which you maintained your office in each state, (ii) the state(s), if any, in
which you are incorporated or otherwise organized, and (iii) the state(s), if
any, in which you still pay income taxes:
5
| C. | Accredited Investor Information | |
| Is the Investor a national bank or a banking institution organized under the laws of any state or any territory of the United States or the District of Columbia? |
| Yes | No |
| Is the Investor a savings and loan association, building and loan association, cooperative bank, homestead association, or similar institution, which is supervised and examined by any state or federal authority having supervision over such institution? |
| Yes | No |
| Is the Investor a broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934? |
| Yes | No |
| Is the Investor a company (i) whose primary and predominant business is underwriting insurance and subject to the supervision by a regulatory agency under the laws of any state or territory, or (ii) registered as an investment company under the Investment Company Act of 1940, or (iii) a Small Business Investment Company licensed by the U.S. Small Business Administration? |
| Yes | No |
| Is the Investor a “business development company” within the meaning of the Investment Company Act of 1940 or the Investment Advisers Act of 1940? |
| Yes | No |
| Is the Investor an employee benefit plan under the Employee Retirement Income Security Act of 1974 (a “Plan") with assets in excess of $5,000,000? |
| Yes | No |
If the Investor is such a Plan, but if the Plan’s total assets do not
exceed $5,000,000, are investment decisions for the Plan made by a bank, savings and
loan association, insurance company or registered investment adviser acting as
fiduciary? (If yes, please specify the name of the fiduciary.)
| Yes | No |
| Name of Fiduciary: |
If the Investor is a self-directed Plan, but if the Plan’s total assets do not exceed
$5,000,000, are investment decisions made solely by persons or entities that can answer yes
to one or more of the questions under paragraphs (b) - (e) of Item 1,
or (c) - (k) under this Item 2? (If yes, please specify the applicable Item and
6
Paragraph.)
| Yes | No | |||
| Item and Paragraph: | ||||
Is the Investor (A)(i) a tax exempt organization which is qualified under
Section 501(c)(3) of the Internal Revenue Code of 1986 as amended, or (ii) a corporation, or (iii) a
Massachusetts or similar business trust, or (iv) a partnership, not formed for the specific purpose
of acquiring the securities offered, and (B) which has assets in excess of
$5,000,000?
| Yes | No |
Is the Investor 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 person who
has such knowledge and experience in financial and business matters that he is capable
of evaluating the merits and risks of the prospective investment?
| Yes | No |
If yes, please attach a memorandum describing such person’s educational background,
professional memberships or licenses, current employment, principal business and
professional activities during the last five years, and experience as an investor in
securities. Include any additional information evidencing that such person has
sufficient knowledge and experience in financial matters that such person would be capable
of evaluating the merits and risks of investing in the securities being
offered.
Is the Investor an entity in which all of the equity owners are persons who are either
(i) entities described in paragraphs (c) through (j)above; (ii) persons
whose net worth, or joint net worth with their spouses, exceeds $1,000,000; (iii) persons whose
income without regard to that of their spouses exceeded $200,000, or whose joint income
with their spouses exceeded $300,000, in each of the last two years and who
reasonably expect such person income to exceed $200,000 or such joint income to exceed $300,000 this
year; or (iv) persons who are brokers or dealers registered pursuant to Section 15 of
the Securities Exchange Act of 1934?
| Yes | No |
If an equity owner is an entity described in paragraphs
(h) or (j) under this Item 3, please provide the
information required by such paragraph.
7
The above information has been requested by the Company and will be used
solely to confirm that the Company is complying with certain securities regulations. In
furnishing the above information, the undersigned acknowledges that the Company will be relying
thereon in assessing the requirements of the Securities Act of 1933, as amended, and other
applicable securities laws.
The information contained in this questionnaire is true and
complete, and the undersigned understands that the Company and its counsel
will rely on such information for the purpose of
complying with all applicable securities laws, as discussed above. The
undersigned agrees to notify the Company promptly of any change
in the foregoing information which may occur prior to any
purchase by the undersigned of stock from the Company.
Date:
Individual
Investor:
| By: |
| Name: |
Entity
Investor:
| By: |
| Name: |
| Title: |
8
