Exhibit 4.3
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FORM OF
SUBSCRIPTION AGREEMENT
Subscription Agreement (this "Agreement"), made this __ day of __________,
2002 by and between Wentworth III, Inc., a Delaware corporation (the "Company"),
and ________________ ("Subscriber", and collectively with all other entities
entering into subscription agreements for Shares, "Subscribers"). In
consideration of the mutual promises and covenants herein contained, the parties
hereto (the "Parties") agree as follows:
ARTICLE I.
SUBSCRIPTION
1.1. Subscription Offer. Subject to the terms and conditions hereof and to
acceptance by the Company, the Subscriber hereby irrevocably offers to purchase
_____ shares (the "Shares") of the Company's common stock, par value $.01 per
share (the "Common Stock"), at a price per share of $1.00, for a total purchase
price of $__________ (the "Purchase Price"). The Purchase Price is payable in
full by check made payable to "Key Bank National Association, Wentworth III,
Inc. Escrow Account administered by Corporate Stock Transfer" and sent to
Corporate Stock Transfer, Inc., as Administrator for Wentworth III, Inc., 0000
Xxxxxx Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
1.2. Acceptance of Subscription. The Company reserves the right to reject
the Subscriber's offer in whole or in part, for any reason, and to allocate less
than the maximum number of Shares the Subscriber hereby offers to purchase. Any
sale of Shares to the Subscriber shall not be deemed to occur until the
Subscriber's offer is accepted in writing by the Company. The Subscriber shall
not have any recourse against the Company if a purchase offer is rejected in
whole or in part. The Company shall reasonably notify the Subscriber in writing
of the acceptance of a purchase offer. If the offer is rejected in whole or in
part, the Company will promptly return to the Subscriber, without deduction or
interest, all or a ratable portion of the subscription price, as the case may
be, together with all executed documents tendered by the Subscriber. If the
purchase offer is rejected in part only, the Subscriber shall immediately
complete, execute and deliver to the Company new subscription documents for the
appropriate reduced amount. 50,000 Shares are being offered by the Company on a
"best efforts, all or none basis." Thus, unless all 50,000 Shares are sold, none
will be sold. Initially, any funds received from Subscribers will be held in a
non-interest bearing escrow account with an insured depository institution. If
the Company is not successful in its efforts to sell 50,000 Shares in the
initial 90-day offering, all funds received from Subscribers will be promptly
returned to the Subscribers. If the Company is successful, after receipt and
acceptance of subscriptions for 50,000 Shares, funds held in the escrow account
shall bear interest.
1.3. Escrow of Funds and Certificate and Restriction on Transfer of Shares.
The Shares have been registered under the Securities Act of 1933, as amended
(the "Act"), and the offering thereof is being conducted pursuant to Rule 419
under the Act ("Rule 419").
Rule 419 requires that before the Shares can be released, the Company must
first execute an agreement to acquire a business. The agreement must provide for
the acquisition of a business or assets for which the fair value of the business
or net assets to be acquired represents at least 80% of the maximum offering
proceeds and which must also represent 50% of the gross proceeds of the offering
pursuant to requirements of the Colorado Securities Act.
Once the acquisition agreement has been executed, Rule 419 requires the
Company to update the registration statement with a post-effective amendment.
The post-effective amendment must contain information about:
(i) the proposed acquisition candidate and its business, including the
requisite financial statements;
(ii) the results of the offering;
(iii) the use of the funds disbursed from the escrow account; and
(iv) the terms of the reconfirmation offer.
1.4. The Reconfirmation Offering. The reconfirmation offer must commence
within five business days after the effective date of the post-effective
amendment and must include the following conditions:
(i) the prospectus contained in the post-effective amendment will be
sent to each Subscriber within five business days after the
effective date of the post-effective amendment;
(ii) each Subscriber will have no fewer than 20, and no more than 45,
business days from the effective date of the post-effective
amendment to notify the Company in writing that he elects to remain
a Subscriber;
(iii) if the Company does not receive written notification from any
Subscriber within 45 business days following the effective date, the
Subscriber's escrowed securities will be returned to the Company and
the Subscriber's escrowed funds to the Subscriber;
(iv) unless Subscribers representing 80% of the maximum offering proceeds
elect to remain Subscribers, the acquisition of the target business
would be prevented, deposited securities held in escrow will be
returned to the Company and the escrowed funds, plus interest, to
the Subscribers; and
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(v) if a consummated acquisition has not occurred within 18 months from
the date of this prospectus, the deposited securities held in the
escrow account will be returned to the Company and the escrowed
funds, plus interest, to the Subscribers.
The Shares may be released to Subscribers after the escrow agent has
received a signed representation from the Company and any other evidence
acceptable by the escrow agent that:
(i) the Company has executed an agreement for the acquisition of a
business for which the fair market value of the business represents
at least 80% of the maximum offering proceeds and the Company has
filed the required post-effective amendment;
(ii) the completion of a transaction or series of transactions whereby at
least 50% of the gross offering proceeds have been committed to a
specific line of business as defined in the Colorado Securities Act
and regulations;
(iii) the expiration of nine (9) days after the receipt by the Colorado
Commissioner of Securities of a notice of the proposed release of
funds or authorization of the Commissioner of any earlier release;
(iv) the post-effective amendment has been declared effective;
(v) the reconfirmation offer has been completed;
(vi) the Company has satisfied all of the prescribed conditions of the
reconfirmation offer; and
(vii) the acquisition of the business or net assets with the fair value of
at least 80% of the maximum proceeds has been consummated.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1. Status of Subscriber. The Subscriber, if an individual, is at least 21
years of age. If an association, each individual of the association is at least
21 years of age.
2.2. Access to Information. Because of the Subscriber's business or
financial experience or his professional advisors who are unaffiliated with and
who are not compensated by the Company, or any affiliate thereof, the Subscriber
has the capacity to protect his own interests in connection with the offer and
sale of the Shares.
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The Subscriber represents that he has received and retained the Company's
prospectus, dated __________, 2002 (the "Prospectus"), a copy of which
accompanied this Subscription Agreement, and has carefully read and understood
it, particularly the section entitled "Risk Factors."
2.3. Understanding of Investment Risks. The Subscriber understands that
there is no market for the Shares and no assurance that a market will develop,
and that realization of the objectives of the Company is subject to significant
economic and business risks as set forth in the Prospectus.
2.4. Residence of the Subscriber. The residence of the Subscriber set forth
below is the true and correct residence of Subscriber and the Subscriber has no
present intention of becoming a resident of domiciliary of any other state,
country, or jurisdiction.
2.5. Further Assurance. Subscriber will execute and deliver to the Company
any document, or do any other act or thing, which the Company may reasonably
request in connection with the acquisition of the Shares.
2.6. Ability to Bear Economic Risk. The Subscriber is qualified under the
jurisdiction of the Subscriber's residence to make this investment. The
Subscriber is able to bear the economic risk of an investment in the Shares and
to maintain the investment in the Shares for an indefinite period of time, and,
further, could bear a total loss of the investment.
2.7. For Partnership, Corporations, Trusts or Other Entities Only. If the
Subscriber is a partnership, corporation, trust or other entity:
The Subscriber has the full power and authority to execute this
Subscription Agreement on behalf of the entity and to make the representations
and warranties made herein on its behalf of this investment in the Company has
been affirmatively authorized by the governing board of the entity and is not
prohibited by the governing documents of the entity.
2.8. Purchase as Principal. The Subscriber represents that he is purchasing
the shares as principal.
ARTICLE III.
MISCELLANEOUS PROVISIONS
3.1. Captions and Headings. The Article and Section headings throughout
this Agreement are for convenience of reference only and shall in no way be
deemed to define, limit or add to any provision of this Agreement.
3.2. Entire Agreement; Amendment. This Agreement states the entire
agreement and understanding of the Parties and shall supersede all prior
agreements and understandings. No amendment of the Agreement shall be made
without the express written consent of the Parties.
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3.3. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect any other provision hereof, which
shall be construed in all respects as if such invalid or unenforceable provision
were omitted.
3.4. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado for contracts made and to be
performed within the State of Colorado.
3.5. Notices. All notices, requests, demands, consents, and other
communications hereunder shall be transmitted in writing and shall be deemed to
have been duly given when hand-delivered or sent by certified mail, postage
prepaid, with return receipt requested, addressed to the Parties as follows: to
the Company and to the Subscriber, at the respective address indicated below.
Any Party may change his address for purposes of this Section by giving notice
as provided herein.
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IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year
first above written.
WENTWORTH III, INC.
By:
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
Address: 000 Xx. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Tel: (000) 000-0000
SUBSCRIBER:
______________________________
Name:
Address:
______________________________
______________________________
______________________________
Tel: ________________________
Fax: _________________________
SS# or Tax ID #: _____________
-0-
XXXXXXXXX XXX, INC.
000 Xx. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
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To: ___________________
Dear Investor:
In connection with your proposed investment (your "Investment") in Wentworth
III, Inc., a Delaware corporation (the "Company"), please be advised that your
offer to purchase _____ shares of the Company's common stock, par value $.01 per
share, at a price per share of $1.00, for a total purchase price of $__________
(the "Purchase Price") has been accepted. This letter constitutes the notice of
acceptance set forth in Section 1.2 of the Subscription Agreement entered into
between you and the Company in connection with your Investment (the
"Subscription Agreement"). In the event that the amount previously tendered by
you to the Company exceeds the Purchase Price, a check for the excess amount
payable to you is enclosed with this letter.
As set forth in the Subscription Agreement, and in the Prospectus referenced in
Section 2.2 thereof, the Purchase Price will be held in an escrow account until
the Company consummates a business combination or the Purchase Price is returned
to you.
If you have any questions or concerns, please contact ________________ at
___________.
Thank you for your support.
Sincerely,
Xxxxxxx X. Xxxxxx
Secretary, Wentworth III, Inc.
