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EXHIBIT 1.1
Excelsior Private Equity Fund II, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
April __, 1997
UST Financial Services Corp.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Re: SELLING AGENT AGREEMENT
Ladies and Gentlemen:
This is to confirm that, in consideration of the agreements
hereinafter contained, the undersigned, Excelsior Private Equity Fund II, Inc.
(the "Company"), a Maryland corporation registered under the Securities Act of
1933, as amended (the "Securities Act"), and regulated as a business development
company under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), has agreed that UST Financial Services Corp. ("UST") shall be the
selling agent of the shares of common stock of the Company (the "Shares").
1. Services as Selling Agent.
1.1 All activities by UST and its agents and employees as
selling agent of the Shares shall comply with all applicable laws, rules and
regulations, including, without limitation, the Securities Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Investment Company
Act and the rules and regulations adopted thereunder by the Securities and
Exchange Commission (the "Commission").
1.2 No Shares shall be offered by UST under any of the
provisions of this Agreement and no orders for the purchase or sale of Shares
hereunder shall be accepted by the Company if and so long as the effectiveness
of the registration statement or any necessary amendments thereto (the
"Registration Statement") shall be suspended under any of the provisions of the
Securities Act.
1.3 UST will not furnish to any person any information
relating to the Shares or the Company that is inconsistent with the Prospectus
of the Company (the "Prospectus") or the Registration Statement or any printed
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information issued by the Company supplemental to such Prospectus or
Registration Statement.
1.4 UST agrees on behalf of itself and its employees to treat
confidentially and as proprietary all records and other information not
otherwise publicly available relative to the Company and its present or
potential investors. UST further agrees not to use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing by the
Company, which approval shall not be unreasonably withheld and may not be
withheld where UST may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Company.
1.5 In effecting the purchase or sale of Shares, the parties
understand and agree that: (i) UST shall act solely as agent for the Company and
purchasers of Shares; (ii) all purchases or sales of Shares shall be initiated
solely upon the instruction and order of the purchaser or seller thereof; (iii)
any purchaser of Shares will have full beneficial ownership of any Shares
purchased upon its authorization and order; (iv) all transactions shall be for
the account of the purchaser or seller and under no circumstances for the
account of UST, and shall be without recourse to UST; and (v) UST shall be under
no obligation to use its best efforts to effect the purchase or sale of Shares
under the terms of this Agreement. The Company and UST further agree that
nothing in this Agreement shall be construed to require or authorize UST to act
as an "underwriter" or "dealer" with respect to the Shares, as those terms are
used and construed in and under those provisions of the Banking Act of 1933, as
amended, commonly known as the "Xxxxx-Xxxxxxxx Act." Under no circumstances will
the parties make any oral or written representations to the contrary.
2. Obligations of the Company.
2.1 The Company shall furnish from time to time for use in
connection with the sale of the Shares such information with respect to the
Company and the Shares as UST may reasonably request. The Company shall also
furnish to UST upon request reasonable quantities of the Prospectus and/or the
Registration Statement and applicable Subscription Agreements substantially in
the form of Appendix A and from time to time such additional information
regarding the Company's financial or regulatory condition as UST may reasonably
request.
2.2 The Company agrees to advise UST as soon as reasonably
practicable by a notice in writing delivered to UST:
(a) of any request by the Commission for amendments to the
Registration Statement or for additional information;
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(b) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation by
service of process on the Company of any proceeding for that purpose;
(c) of the happening of any event that makes untrue any
statement of a material fact made in the Registration Statement or that requires
the making of a change in such Registration Statement in order to make the
statements therein not misleading;
(d) of all actions of the Commission with respect to any
amendment to any Registration Statement that may from time to time be filed with
the Commission; and
(e) of the regulatory status of the Shares in any states
where the Shares have been registered including all action of state securities
regulators with respect to the Registration Statement.
For purposes of this paragraph 2.2, informal requests by or
acts of the Staff of the Commission shall not be deemed actions of or requests
by the Commission.
3. Delegation.
In performing its duties under this Agreement and assuming the
obligations set forth herein, UST may, at its own expense, appoint one or more
sub-selling agents; provided that UST understands and agrees that it shall
remain fully responsible for the performance of all the duties set forth in this
Agreement.
4. Representations and Warranties.
4.1 The Company hereby represents, warrants and undertakes to
UST and any sub-selling agent appointed by UST pursuant to Section 3 hereof
that:
(a) it has all requisite authority to enter into, execute,
deliver and perform its obligations under this Agreement and that, with respect
to it, this Agreement is legal, valid and binding, and enforceable in accordance
with its terms;
(b) all registration statements filed by the Company with the
Commission under the Securities Act with respect to the Shares have been
prepared in conformity with the requirements of such statute and the rules and
regulations of the Commission thereunder. The Company further represents and
warrants to UST and any sub-selling agent that any Registration Statement will
contain all statements required to be stated therein in conformity with both
such statute and the rules and regulations of the Commission; that all
statements of fact
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contained in any Registration Statement will be true and correct in all material
respects at the time of filing of such Registration Statement or amendment
thereto; and that no Registration Statement will include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading to a purchaser of the
Shares. The Company may, but shall not be obligated to, propose from time to
time such amendments to any Registration Statement as in the light of future
developments may, in the opinion of the Company's counsel, be necessary or
advisable. If the Company shall not propose any such amendment and/or supplement
within fifteen days after receipt by the Company of a written request from UST
to do so, UST may, at its option, terminate this Agreement;
(c) it will accept subscription funds with respect to a
particular purchaser only upon (i) the Company's satisfaction that such
purchaser meets the investor suitability standards applicable to such purchaser
set forth in the Company's Prospectus and (ii) the Company's receipt of a
Subscription Agreement acceptable to the Company; and
(d) UST and any sub-selling agent shall be entitled to rely
on the Company's acceptance of any Subscription Agreement as evidence that the
purchaser meets the investor suitability standards applicable to such purchaser
as set forth in the Company's Prospectus and that any sub-selling agent
appointed by UST pursuant to Section 3 hereof, by virtue of its agreement with
UST to act as sub-selling agent for the Shares, shall become a third-party
beneficiary of this Selling Agent Agreement and shall be entitled to enforce its
rights hereunder.
4.2 UST hereby represents, warrants and undertakes that it:
(a) is either exempt from licensing or possesses all material
government licenses, permits, certificates, consents, orders, approvals,
memberships in self-regulatory organizations and other authorizations necessary
with respect to its qualification to perform its duties under this Agreement;
(b) is familiar with Rule 15c2-8 under the Exchange Act
relating to the distribution of preliminary and final prospectuses and agrees
that it will comply therewith and will make a record of its distribution of each
preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, will, upon the Company's request, promptly forward
copies thereof to each person to whom it has theretofore distributed a
preliminary prospectus;
(c) has all requisite authority to enter into, execute,
deliver and perform its obligations under this Agreement and that with respect
to it, this Agreement is legal,
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valid and binding, and enforceable in accordance with its terms; and
(d) will make appropriate disclosure to purchasers that the
Shares are not endorsed by UST, do not constitute UST's obligation and are not
entitled to federal deposit insurance.
5. Indemnification.
The Company agrees to indemnify, defend and hold UST and any
sub-selling agent appointed by UST, their several officers and directors, and
any person who controls UST or any sub-selling agent within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (for purposes
of this paragraph 5.1, collectively, "Covered Persons") free and harmless from
and against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
reasonable counsel fees incurred in connection therewith) which any Covered
Person may incur under the Securities Act, the Exchange Act, or otherwise
arising out of or based on (i) any false statements or representations of the
Company contained in this Agreement, including, without limitation, the
Company's undertaking contained in paragraph 4.1(d) hereof, and (ii) any untrue
statement of a material fact contained in any Registration Statement or other
offering material ("Offering Material") or arising out of or based on any
omission to state a material fact required to be stated in any Offering Material
or necessary to make the statements in any Offering Material not misleading;
provided, however, that the Company's agreement to indemnify Covered Persons
shall not be deemed to cover any claims, demands, liabilities or expenses
arising out of statements, if any, that are furnished in writing to the Company
by a Covered Person for use in the answers to any items of any Registration
Statement or in any statements made in any Offering Material, or arising out of
or based on any omission or alleged omission to state a material fact in
connection with the giving of such information required to be stated in such
answers or necessary to make the answers not misleading; and further provided
that the Company's agreement to indemnify a Covered Person shall not be deemed
to cover any liability to the Company or its investors to which a Covered Person
would otherwise be subject by reason of a breach of its representations and
warranties or its willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of a Covered Person's reckless disregard
of its obligations and duties under this Agreement or any sub-selling agent
agreement. The Company should be notified of any action brought against a
Covered Person, such notification to be given by letter or by telegram addressed
to the Company, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
X. Xxxx, with a copy to United States Trust Company of New York, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Esq. promptly
after the summons or other first legal process
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shall have been duly and completely served upon such Covered Person. The failure
to so notify the Company of any such action shall not relieve the Company from
any liability except to the extent the Company shall have been prejudiced by
such failure or from any liability that the Company may have to the Covered
Person against whom such action is brought by reason of any such untrue
statement or omission, otherwise than on account of the Company's indemnity
agreement contained in this paragraph. The Company will be entitled to assume
the defense of any suit brought to enforce any such claim, demand or liability,
but in such case such defense shall be conducted by counsel of good standing
chosen by the Company and approved by the Covered Person, which approval shall
not be unreasonably withheld. In the event the Company elects to assume the
defense of any such suit and retain counsel of good standing approved by the
Covered Person, the defendant or defendants in such suit shall bear the
reasonable fees and expenses of any additional counsel retained by any of them;
but in case the Company does not elect to assume the defense of any such suit,
or in case the Covered Person reasonably does not approve of counsel chosen by
the Company, the Company will reimburse the Covered Person named as defendant in
such suit, for the fees and expenses of any counsel retained by UST or the
Covered Persons. The Company's indemnification agreement contained in this
paragraph and the Company's representations and warranties in this Agreement
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of Covered Persons, and shall survive the
delivery of any Shares. This agreement of indemnity will inure exclusively to
Covered Persons and their successors. The Company agrees to notify UST and any
sub-selling agent promptly of the commencement of any litigation or proceedings
against the Company or any of its officers or directors in connection with the
issue and sale of the Shares.
6. Contribution.
The Company agrees that if the indemnification provided for in
Section 5 is unavailable or insufficient to hold harmless a Covered Person, then
the Company shall contribute to the amount paid or payable by such Covered
Person as a result of all claims, demands, liabilities and expenses (including
the cost of investigating or defending such claims, demands or liabilities and
any reasonable counsel fees incurred in connection therewith) of the nature
contemplated by said indemnity agreement in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and the Covered Person
on the other in connection with such claims, demands, liabilities and expenses,
as well as any other relevant equitable considerations. Each Covered Person
entitled to contribution agrees to notify the Company of any action brought
against such Covered Person in respect of which contribution may be sought in
the manner set forth in Section 5.
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7. Term.
This Agreement shall become effective on the date first above
written and shall continue until December 31, 1997. The parties may mutually
agree to terminate this Agreement.
8. Notices.
All notices, demands, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed, registered or certified, return receipt requested,
first-class, postage pre-paid to:
(a) the Company: Excelsior Private Equity Fund II, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxx
(b) UST: UST Financial Services Corp.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: ________________
9. Concerning Applicable Provisions of Law, etc.
This Agreement shall be subject to all applicable provisions
of law and to the extent that any provisions herein contained conflict with any
such applicable provisions of law, the latter shall control.
This Agreement is executed and delivered in the City of New
York and the laws of the State of New York shall, except to the extent that any
applicable provisions of Federal law shall be controlling, govern the
construction, validity and effect of this Agreement, without reference to
principles of conflicts of law.
The undersigned officer of the Company has executed this
Agreement not individually, but as President under the Company's Articles of
Incorporation, dated March __, 1997, as amended. Pursuant to the Articles of
Incorporation, the obligations of this Agreement are not binding upon any of the
Directors or investors of the Company individually, but bind only the Company's
assets.
If the contract set forth herein is acceptable to you, please
so indicate by executing the enclosed copy of this Agreement and returning the
same to the undersigned, whereupon this Agreement shall constitute a binding
contract between the parties hereto effective at the closing of business on the
date hereof.
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Very truly yours,
EXCELSIOR PRIVATE EQUITY FUND II, INC.
By:___________________________________
Name: Xxxxx X. Xxxx
Title: President
Accepted:
UST FINANCIAL SERVICES CORP.
By:_____________________________
Name:
Title:
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APPENDIX A
EXCELSIOR PRIVATE EQUITY FUND II, INC.
SUBSCRIPTION AGREEMENT
Excelsior Private Equity Fund II, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, by signing this Subscription Agreement, and subject to the
terms and conditions hereof and the provisions of the Prospectus of Excelsior
Private Equity Fund II, Inc. (the "Company") (the "Prospectus"), hereby
subscribes for shares of common stock (the "Shares") of the Company in the
aggregate investment amount set forth on the reverse side hereof (the
undersigned's "Investment Amount"), and herewith encloses payment in an amount
equal to such Investment Amount. The undersigned understands that such funds
will be held by United States Trust Company of New York as Escrow Agent, and
will be returned promptly, together with any interest earned thereon, to the
undersigned, in the event that at least 100,000 Shares are not subscribed for
and the payments therefor are not made by July 31, 1997 or such other subsequent
date not later than December 31, 1997 as the Managing Investment Adviser and the
Company may determine.
1. Acceptance of Subscription. It is understood and agreed that the
Company shall have the right, in its sole discretion, to accept or reject this
subscription, in whole or in part. Subscriptions need not be accepted in the
order received, and Shares may be allocated in the event of oversubscription.
2. Right to Refund. The undersigned shall have the right to receive a
refund of their investment for a period of five business days from the date
payment for the investment is submitted by the undersigned. Such request may be
made in any fashion but, if made other than in an originally signed and written
communication, must be confirmed with such a communication within 15 business
days after the date payment is submitted.
3. Representations and Warranties of the Undersigned. The undersigned
hereby represents and warrants to the Company and UST Financial Services Corp.,
and each officer, director, controlling person, and agent of the Company and UST
Financial Services Corp., that:
(a) the undersigned meets the investor suitability standards set forth
in the Prospectus under "Investor Suitability Standards."
(b) if an investment in the Company is being made by a corporation,
partnership, trust, or estate, he/she has all right and authority, in
his/her capacity as an officer, general partner, trustee, executor, or
other representative of such corporation, partnership, trust, or estate, as
the case may be, to make such decision to invest in the Shares and to
execute and deliver this Subscription Agreement on behalf of such
corporation, partnership, trust, or estate, as the case may be, and this
Subscription Agreement is a valid and binding agreement of such
corporation, partnership, trust, or estate, enforceable in accordance with
its terms;
(c) the undersigned has reached the age of majority in higher state of
residence;
(d) the undersigned hereby acknowledges that the undersigned has
received and carefully reviewed the Prospectus, as amended and/or
supplemented; and
(e) if the undersigned is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), in making this investment
he/she is aware of and has taken into consideration the prudence,
diversification, and other fiduciary requirements of ERISA and has
concluded that this investment is in compliance with such requirements; and
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(f) The undersigned has, upon his/her own initiative, inquired about
and invested in the Company, and has not been solicited or induced in any
way by an employee of UST Financial Services Corp.
4. Indemnification. The undersigned hereby agrees to indemnify and hold
harmless the Company and UST Financial Services Corp., each officer, director,
controlling person, and agent of the Company and UST Financial Services Corp.,
from and against any and all loss, claim, damage, liability, or expense, and any
action in respect thereof, joint or several, to which any such person may become
subject, due to or arising out of the falsity or inaccuracy of any
representation, warranty or any other information provided herein, together with
all reasonable costs and expenses (including attorneys' fees) incurred by any
such person in connection with any action, suit, proceeding, demand, assessment,
or judgment incident to any of the matters so indemnified against.
5. Survival. All representations and warranties contained in this
Subscription Agreement and the indemnification provisions contained in Section 4
hereof shall survive (i) the acceptance of the subscription, (ii) changes in the
transactions, documents, and instruments described in the Prospectus that are
not material, and (iii) the death or disability of the undersigned.
6. Governing Law. This Subscription Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Under penalties of perjury, the undersigned certifies that the information
provided on the reverse of this form is true, correct and complete.
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EXCELSIOR PRIVATE EQUITY FUND II, INC.
SUBSCRIPTION AGREEMENT
Purchase Price of $1,000 per Share: minimum
INVESTMENT AMOUNT: $ / SHARES subscription is $25,000 (25 Shares)
Make check payable to U.S. Trust of New York, Escrow Agent for EXCELSIOR PRIVATE
EQUITY FUND II, INC., 000 Xxxx 00xx Xxxxxx, XX, XX 00000. Checks should be
delivered to the Selling Agent together with this Subscription Agreement.
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INDIVIDUAL ACCOUNTS: CUSTODIAL ACCOUNTS:
Complete sections 1, 4, 5 and sign below Complete sections 2, 3, 4, 5 and sign below
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MANNER IN WHICH TITLE IS TO BE HELD (CHECK ONE)
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(1) INDIVIDUAL ACCOUNTS (2) CUSTODIAL ACCOUNTS
[ ] A. Individual Owner [ ] E. Tenants in common [ ] I. XXX [ ] L. Trust (date est.)
(all parties must sign)
[ ] B. Joint tenants with [ ] X. Xxxxx Plan [ ] M. Pension
right of survivorship [ ] F. Tenants by the
entirety (both [ ] K. Uniform Gifts [ ] N. Profit Sharing
[ ] C. Community property parties must sign) to Minors Act
[ ] D. Separate property
[ ] G. Corporate owner
State of
[ ] H. Partnership owner
EACH CUSTODIAN(S) OR TRUSTEE(S) MUST SIGN
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(3) TRUSTEE(S) OR NAME OF EACH CUSTODIAN (TRUSTEE) ACCOUNT #
CUSTODIAN(S) ---------------------------------------------------------------------------------------
(attach additional
sheets if necessary) ---------------------------------------------------------------------------------------
XXXXXX XX X.X. XXX
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XXXX XXXXX ZIP PHONE
( )
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TRUSTEE OR CUSTODIAN TAX ID NUMBER
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(4) INVESTOR(S) INVESTOR NAME CO-INVESTOR NAME
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XXXXXX XX X.X. XXX
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XXXX XXXXX ZIP PHONE
( )
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LEGAL STATE OF RESIDENCY (IF DIFFERENT FROM ABOVE) U.S. CITIZEN
[ ] YES [ ] NO
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SOCIAL SECURITY OR TAX ID NUMBER FOR IRS REPORTING
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(5) DISTRIBUTION ADDRESS -- NAME OF CUSTODIAN (TRUSTEE) ACCOUNT #
IF DIFFERENT FROM -----------------------------------------------------------------------------------------
ADDRESS ABOVE STREET OR P.O. BOX
(DISTRIBUTIONS FOR -----------------------------------------------------------------------------------------
CUSTODIAL ACCOUNTS CITY STATE ZIP PHONE
WILL BE SENT TO THE ( )
CUSTODIAN) -----------------------------------------------------------------------------------------
TRUSTEE OR CUSTODIAN TAX ID NUMBER
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I certify, under penalties of perjury, that: (1) the tax identification number
shown on this application is correct and (2) I am NOT currently under IRS
notification that part of my dividend and interest income is to be withheld as a
result of my failure to report all dividend and interest income on my income tax
return -- i.e. backup withholding.
(Strike the word "NOT" above if you received IRS notification.)
SIGNATURE(S): Please read the reverse before signing; names must be signed
exactly as registered above; each investor is required to sign his/her/its own
Subscription Agreement unless signed by a trustee or custodian.
Investor's Signature Date
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Co-Investor's Signature Date
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Trustee or Custodian's Signature Date
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Co-Trustee or Co-Custodian's Signature Date
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THE SELLING AGENT MUST SIGN BELOW TO COMPLETE THE ORDER
I had reasonable grounds to believe, on the basis of information obtained from
the subscriber concerning his/her age, investment objectives, other investments,
financial situation and needs, and any other information known by me, including
said subscriber's recognizable capacity to understand the important aspects and
risks of the investment, that (i) the subscriber is or will be in a financial
position appropriate to enable him/her to realize to a significant extent the
benefits described in the Prospectus; (ii) the subscriber has a fair market net
worth sufficient to sustain the risks inherent in and investment in the Company,
including loss of investment and lack of liquidity; and (iii) the Company is
otherwise suitable for the subscriber. I further certify that I have informed
the subscriber of all pertinent facts relating to the liquidity and
marketability of the Shares during the term of the Company. I also warrant that
I am exempt from licensing or duly licensed, as appropriate, and may lawfully
sell the Shares in the state designated as the subscriber's residence.
Name Address
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City State Zip Phone
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[Licensed Firm Name] [Firm's Headquarters Mailing Address]
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[City] State Zip Phone
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Signature
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