IMPORTANT: PLEASE READ CAREFULLY BEFORE SIGNING. SIGNIFICANT REPRESENTATIONS ARE CALLED FOR HEREIN. SUBSCRIPTION AGREEMENT and LETTER OF INVESTMENT INTENT
Exhibit
10.2
IMPORTANT: PLEASE
READ CAREFULLY BEFORE SIGNING.
SIGNIFICANT
REPRESENTATIONS ARE CALLED FOR HEREIN.
and
LETTER OF
INVESTMENT INTENT
0000
Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx
Xxxxxxx, XX 00000-0000
Gentlemen:
The undersigned (the "Subscriber")
hereby tenders this subscription for the purchase of units (“Units” or
“Securities”) issued by Omni Bio Pharmaceutical, Inc. (the
“Company”). Each Unit consists of one share of the common stock of
the Company (“Common Stock”), and one warrant to purchase a share of the common
stock of the Company at an exercise price of $3.75 per share (a
“Warrant”). The Units are being offered at a price of $2.50 per Unit
(the “Offering”). By execution below, the Subscriber acknowledges
that the Company is relying upon the accuracy and completeness of the
representations and warranties contained herein in complying with its
obligations under applicable securities laws.
1.
Subscription
Commitment. The Subscriber hereby subscribes for the purchase
of ____ Units at an aggregate purchase price of $_______________ as full payment
therefor. The purchase price shall be paid to the Company by
cashier’s check made payable to the Company or by wire transfer to the account
of the Company.
The Subscriber understands that this
subscription is not binding on the Company until accepted by the Company, which
acceptance is at the sole discretion of the Company and is to be evidenced by
the Company's execution of this Subscription Agreement where
indicated. If the subscription is rejected, the Company shall return
to the Subscriber, without interest or deduction, any payment tendered by the
Subscriber, and the Company and the Subscriber shall have no further obligation
to each other hereunder. Unless and until rejected by the Company,
this subscription shall be irrevocable by the Subscriber.
2.
Representations and
Warranties. In order to induce the Company to accept this
subscription, the Subscriber hereby represents and warrants to, and covenants
with, the Company as follows:
(a)
Receipt of Document;
Access to Information. Subscriber has been provided with a
copy of the Company’s Confidential Offering Memorandum (the “Memorandum”), a
form of the Warrant, a copy of which is attached to the Memorandum as Exhibit B.
The Memorandum, form of the Warrant and this Subscription Agreement are referred
to herein as the “Documents.” The Subscriber has carefully reviewed
and is familiar with all of the terms of the Documents, including the Risk
Factors contained in the Memorandum. The Subscriber has been given
access to full and complete information regarding the Company and has utilized
such access to the Subscriber’s satisfaction for the purpose of obtaining such
information regarding the Company as the Subscriber has reasonably requested;
and, particularly, the Subscriber has been given reasonable opportunity to ask
questions of, and receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Securities and to
obtain any additional information, to the extent reasonably available. The
Subscriber acknowledges that the
Subscriber has had an opportunity to review all of the Company’s SEC filings,
which are publicly available at xxx.XXX.xxx.
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(b) Reliance. Except
for the Documents and the Company’s SEC filings, the Subscriber has not been
furnished with any other materials or literature relating to the offer and sale
of the Securities. The Subscriber has relied on nothing other than
the Documents (including any exhibits thereto) and the Company’s SEC filings in
deciding whether to make an investment in the Company. Except as set
forth in the Documents, no representations or warranties have been made to the
Subscriber by the Company, any selling agent of the Company, or any agent,
employee, or affiliate of the Company or such selling agent.
(c) Economic
Loss. The Subscriber believes that an investment in the
Securities is suitable for the Subscriber based upon the Subscriber’s investment
objectives and financial needs. The Subscriber (i) has adequate means
for providing for the Subscriber’s current financial needs and personal
contingencies; (ii) has no need for liquidity in this investment; (iii) at the
present time, can afford a complete loss of such investment; and (iv) does not
have an overall commitment to investments which are not readily marketable that
is disproportionate to the Subscriber's net worth, and the Subscriber's
investment in the Securities will not cause such overall commitment to become
excessive.
(d) Sophistication. The
Subscriber, in reaching a decision to subscribe, has such knowledge and
experience in financial and business matters that the Subscriber is capable of reading
and interpreting financial statements and evaluating the merits and risk of an
investment in the Securities and has the net worth to undertake such
risks. The investment contemplated hereby is the result of arm’s
length negotiation between the Subscriber and the Company.
(e) No General
Solicitation. The Subscriber was not offered or sold the
Securities, directly or indirectly, by means of any form of general advertising
or general solicitation, including, but not limited to, the
following: (1) any advertisement, article, notice or other
communication published in any newspaper, magazine, or similar medium of or
broadcast over television or radio; or (2) to the knowledge of the undersigned,
any seminar or meeting whose attendees had been invited by any general
solicitation or general advertising.
(f) Seek
Advice. The Subscriber has obtained, to the extent the
Subscriber deems necessary, the Subscriber’s own personal professional advice
with respect to the risks inherent in the investment in the securities, and the
suitability of an investment in the Securities in light of the Subscriber's
financial condition and investment needs;
(g) Investment
Risks. The Subscriber recognizes that the Securities as an
investment involves a high degree of risk, including those set forth under Risk
Factors attached hereto as Exhibit B and other “risk factors” contained in the
Documents.
(h) Effect and Time of
Representations. The information provided by the Subscriber
contained in this Subscription Agreement is true, complete and correct in all
material respects as of the date hereof. The Subscriber understands
that the Company's determination that the exemption from the registration
provisions of the Securities Act of 1933, as amended (the "Securities Act"),
which is based upon non-public offerings and applicable to the offer and sale of
the Securities, is based, in part, upon the representations, warranties, and
agreements made by the Subscriber herein. The Subscriber consents to
the disclosure of any such information, and any other information furnished to
the Company, to any governmental authority or self-regulatory organization, or,
to the extent required by law, to any other person.
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(i)
Restrictions on
Transfer; No Market for Securities. The Subscriber
acknowledges that (i) the purchase of the Securities is a long-term investment;
(ii) the purchaser of the Securities must bear the economic risk of investment
for an indefinite period of time because the Securities have not been registered
under the Securities Act or under the securities laws of any state and,
therefore, the Securities cannot be resold unless they are subsequently
registered under said laws or exemptions from such registrations are
available; (iii) there is presently no public market for the
Securities and the Subscriber may be unable to liquidate the Subscriber’s
investment in the event of an emergency, or pledge the Securities as collateral
for a loan; and (iv) the transferability of the Securities is restricted and (A)
requires conformity with the restrictions contained in paragraph 2 below and (B)
legends will be placed on the certificate(s) representing the Securities
referring to the applicable restrictions on transferability.
(j)
No Backup
Withholding. The Subscriber certifies, under penalties of
perjury, that the Subscriber is NOT subject to the backup withholding provisions
of Section 3406(a)(i)(C) of the Internal Revenue Code.
(k)
Restrictive
Legend. Stop transfer instructions will be placed with the
transfer agent for the Securities, and a legend may be placed on any certificate
representing the Securities substantially to the following effect:
THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), IN RELIANCE UPON THE
EXEMPTIONS FROM REGISTRATION PROVIDED IN THE ACT AND REGULATION D UNDER THE ACT
AND HAVE NOT BEEN REGISTERED UNDER ANY STATE SECURITIES LAWS. AS
SUCH, THE PURCHASE OF THIS SECURITY WAS NECESSARILY WITH THE INTENT OF
INVESTMENT AND NOT WITH A VIEW FOR DISTRIBUTION. THEREFORE, ANY
SUBSEQUENT TRANSFER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE UNLAWFUL
UNLESS IT IS REGISTERED UNDER THE ACT AND ANY STATE SECURITIES LAWS OR UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE. FURTHERMORE, IT IS UNLAWFUL TO
CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY OR ANY INTEREST THEREIN, WITHOUT
THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT THE PROPOSED TRANSFER OR
SALE DOES NOT AFFECT THE EXEMPTIONS RELIED UPON BY THE COMPANY IN ORIGINALLY
DISTRIBUTING THE SECURITY AND THAT REGISTRATION IS NOT REQUIRED.
(l)
Placement
Agent. The Subscriber understands
that Bathgate Capital Partners LLC is acting as placement agent (the “Placement
Agent”) on this transaction. The Company will pay the
Placement Agent a sales commission of 8% of the gross proceeds of this Offering
and a non-accountable expense allowance of 2% of the gross
proceeds. The Placement Agent may re-allow a portion of the
commission to participating selling agents. The Company will also
sell to the Placement Agent, for nominal consideration, warrants to
purchase 10% of the total number of Units sold in this
Offering. The warrants will be exercisable until five (5) years after
the Final Closing of the Offering.
(m)
Notice of
Change. The Subscriber agrees that it will notify the Company
in writing promptly (but in all events within thirty (30) days after the
applicable change) of any actual or anticipated change in any facts or
circumstances, which change would make any of the representations and warranties
in the Documents untrue if made as of the date of such change (after giving
effect thereto).
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3.
Restricted Nature of
the Securities; Investment Intent. The Subscriber has been advised and
understands that (a) the Securities have not been registered under the
Securities Act or applicable state securities laws and that the securities are
being offered and sold pursuant to exemptions from such laws; (b) the Documents
may not have been filed with or reviewed by certain state securities
administrators because of the limited nature of the offering; (c) the Company is
under no obligation to register the Securities under the Act or any state
securities laws, or to take any action to make any exemption from any such
registration provisions available. The Subscriber represents and warrants that
the Securities are being purchased for the Subscriber’s own account and for
investment purposes only, and without the intention of reselling or
redistributing the same; the Subscriber has made no agreement with others
regarding any of the Securities; and the Subscriber’s financial condition is
such that it is not likely that it will be necessary to dispose of any of such
Securities in the foreseeable future. The Subscriber is aware that,
in the view of the SEC, a purchase of such securities with an intent to resell
by reason of any foreseeable specific contingency or anticipated change in
market value, or any change in the condition of the Company, or in connection
with a contemplated liquidation settlement of any loan obtained for the
acquisition of such securities and for which such securities were pledged, would
represent an intent inconsistent with the representations set forth
above. The Subscriber further represents and agrees that if, contrary
to the foregoing intentions, the Subscriber should later desire to dispose of or
transfer any of such securities in any manner, the Subscriber shall not do so
unless and until (i) said Securities shall have first been registered under the
Act and all applicable securities laws; or (ii) the Subscriber shall have first
delivered to the Company a written notice declaring such holder's intention to
effect such transfer and describe in sufficient detail the manner and
circumstances of the proposed transfer, which notice shall be accompanied either
by a written opinion of legal counsel who shall be reasonably satisfactory to
the Company, which opinion shall be addressed to the Company and reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed sale or transfer is exempt from the registration provisions of the
Act and all applicable state securities laws, or by a "no action" letter from
the SEC to the effect that the transfer of the Securities without registration
will not result in recommendation by the staff of the Commission that action be
taken with respect thereto.
4.
Residence. The
Subscriber represents and warrants that the Subscriber is a bona fide resident
of, is domiciled in and received the offer and made the decision to invest in
the Securities in the state set forth on the signature page hereof, and the
Securities are being purchased by the Subscriber in the Subscriber’s name solely
for the Subscriber’s own beneficial interest and not as nominee for, or on
behalf of, or for the beneficial interest of, or with the intention to transfer
to, any other person, trust or organization, except as specifically set forth in
this Subscription Agreement.
5.
Investor
Qualification. The Subscriber represents and warrants that the
Subscriber is an “accredited investor” as that term is defined in Regulation D
under the Securities Act because the Subscriber comes within at least one
category marked below. The Subscriber further represents and warrants
that the information set forth below is true and correct. ALL
INFORMATION IN RESPONSE TO THIS PARAGRAPH WILL BE KEPT STRICTLY CONFIDENTIAL
EXCEPT AS REQUIRED BY LAW. The Subscriber agrees to furnish any
additional information which the Company deems necessary in order to verify the
answers set forth below. (Please check all that
apply.)
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Category
I
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_______
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The
Subscriber is an individual (not a partnership, corporation, etc.) whose
individual net worth, or joint net worth with the Subscriber’s spouse,
presently exceeds $1,000,000.
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Explanation. In
calculation of net worth the Subscriber may include equity in personal
property and real estate, including the Subscriber’s principal residence,
cash, short term investments, stocks and securities. Equity in
personal property and real estate should be based on the fair market value
of such property less debt secured by such property.
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Category
II
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_______
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The
Subscriber is an individual (not a partnership, corporation, etc.) who had
an individual net income in excess of $200,000 in each of the last two
years, or joint income with his/her spouse in excess of $300,000 in each
of the last two years, and has a reasonable expectation of reaching the
same income level in the current year.
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Category
III
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_______
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The
Subscriber is an executive officer or director of the
Company.
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Category
IV
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_______
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The
Subscriber is a bank as defined in Section 3(a)(2) of the Securities Act;
a savings and loan as defined in Section 3(a)(5)(A) of the Securities Act;
an insurance company as defined in Section 2(13) of the Securities Act; a
broker or dealer registered pursuant to the Securities Exchange Act of
1934, as amended (the “Exchange Act”); an investment company registered
under the Investment Company Act of 1940, as amended (the “Investment
Company Act”), or a business development company as defined in Section
2(a)(48) of the Investment Company Act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958; a 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; an employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), if the
investment decision is made by a plan fiduciary, as defined in Section
3(21) of ERISA, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, 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 (this includes IRAs). (Note: If you
check this category, the Company may request additional information
regarding investment company and ERISA issues.)
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(describe
entity)
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Category
V
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_______
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The
Subscriber is a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940, as
amended.
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(describe
entity)
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Category
VI
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_______ |
The
Subscriber is an entity with total assets in excess of $5,000,000 which
was not formed for the purpose of
investing in the Securities and which is one of the
following:
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_____
a corporation; or
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_____
a partnership; or
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_____
a business trust; or
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_____
a tax-exempt organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
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(describe
entity)
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Category
VII
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_______ |
The
Subscriber is an entity all the equity owners of which are “accredited
investors” within one or more of the above categories. If relying upon this category
alone, each equity owner must complete a separate copy of this
Agreement.
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(describe
entity)
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Category
VIII
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_______
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The
Subscriber is a trust with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Securities, 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.
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6. FINRA
Questionnaire.
(a) Are you a member of FINRA1, a person associated with a member of
FINRA2, or an affiliate of a
member?
Yes _______ No_______
If "Yes,"
please list any members of FINRA with whom you are associated or
affiliated.
(b) If
you are a corporation, are any of your officers, directors or 5% shareholders a
member of FINRA, a person associated with a member of FINRA, or an affiliate of
a member?
Yes _______ No_______
If "Yes,"
please list the name of the respective officer, director, or 5% shareholder and
any members of FINRA with whom they are associated or affiliated.
7. Authority. The
undersigned, if other than an individual, makes the following additional
representations:
(a) The
Subscriber was not organized for the specific purpose of acquiring the
Securities;
(b) The
Subscriber if fully authorized, empowered and qualified to execute and deliver
this Subscription Agreement, to subscribe for and purchase the Securities and to
perform its obligations
under, and to consummate the transactions that are contemplated by the
Subscription Agreement; and
_____________________________
1 FINRA
defines a "member" as being either any broker or dealer admitted to membership
in FINRA or any officer or partner of such a member, or the executive
representative of such a member or the substitute for such
representative.
2 FINRA
defines a "person associated with a member" as being every sole proprietor,
general or limited partner, officer, director or branch manager or such member,
or any natural person occupying a similar status or performing similar
functions, or any natural person engaged in the investment banking or securities
business who is directly or indirectly controlling or controlled by such member
(for example, any employee), whether or not any such person is registered or
exempt from registration without FINRA. Thus, "person associated with
a member" includes a sole proprietor, general or limited partner, officer,
director or branch manager or an organization of any kind (whether a
corporation, partnership or other business entity) which itself is a "member" or
a "person associated with a member." In addition, an organization of
any kind is a "person associated with a member" if its sole proprietor or anyone
of its general or limited partners, officers, director or branch managers is a
"member" or "person associated with a member."
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(c) This
Subscription Agreement has been duly authorized by all necessary action on the
part of the Subscriber, has been duly executed by an authorized officer or
representative of the Subscriber, and is a legal, valid and binding obligation
of the Subscriber enforceable in accordance with its terms.
8. Use of
Proceeds. The Subscriber acknowledges that any proceeds from
the sale of the Units will be used by the Company for working capital and
research and development expenses as further described in the
Memorandum.
9. Compliance with Laws; No
Conflict. The execution and delivery of the Subscription
Agreement by or on behalf of the Subscriber and the performance of the
Subscriber’s obligations under, and the consummation of the transactions
contemplated by, the Subscription Agreement do not and will not conflict with or
result in any violation of, or default under, any provision of any charter,
bylaws, trust agreement, partnership agreement or other governing instrument
applicable to the Subscriber, or other agreement or instrument to which the
Subscriber is a party, or by which the Subscriber is, or any of its assets are,
bound, or any permit, franchise, judgment, decree, statute, rule, regulation or
other law applicable to the Subscriber or the business or assets of the
Subscriber.
10. Reliance on
Representations. The Subscriber understands the meaning and
legal consequences of the representations, warranties, agreements, covenants,
and confirmations set out above and agrees that the subscription made hereby may
be accepted in reliance thereon. The Subscriber acknowledges that the
Company has relied and will rely upon the representations and warranties of the
Subscriber in this Subscription Agreement. The Subscriber agrees to
indemnify and hold harmless the Company and any selling agent (including for
this purpose their employees, and each person who controls either of them within
the meaning of Section 20 of the Exchange Act) from and against any and all
loss, damage, liability or expense, including reasonable costs and attorney's
fees and disbursements, which the Company, or such other persons may incur by
reason of, or in connection with, any representation or warranty made herein not
having been true when made, any misrepresentation made by the Subscriber or any
failure by the Subscriber to fulfill any of the covenants or agreements set
forth herein, in the Purchaser Questionnaire or in any other document provided
by the Subscriber to the Company.
11. Transferability and
Assignability. Neither this Subscription Agreement nor any of
the rights of the Subscriber hereunder may be transferred or assigned by the
Subscriber. The Subscriber agrees that the Subscriber may not cancel,
terminate, or revoke this Subscription Agreement or any agreement of the
Subscriber made hereunder (except as otherwise specifically provided herein) and
that this Subscription Agreement shall survive the death or disability of the
Subscriber and shall be binding upon the Subscriber's heirs, executors,
administrators, successors, and assigns.
12. Survival. The
representations and warranties of the Subscriber set forth herein shall survive
the sale of the Securities pursuant to this Subscription Agreement.
13. Notices. All
notices or other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally or mailed by certified or
registered mail, return receipt requested, postage prepaid, as
follows: if to the Subscriber, to the address set forth below; and if
to the Company to the address at the beginning of this letter, or to such other
address as the Company or the Subscriber shall have designated to the other by
like notice.
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14. 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 document.
15. Governing
Law. This Subscription
Agreement shall be governed by and construed in accordance with the internal
laws (and not the law of conflicts) of the State of Colorado. The
parties hereby consent to the non-exclusive jurisdiction of the courts of the
State of Colorado and any federal or state court located in Denver, Colorado for
any action arising out of this Subscription Agreement.
16. Entire
Agreement. This Agreement, including the appendices hereto,
constitutes the entire agreement, and supersedes all prior agreements or
understandings, among the parties hereto with respect to the subject matter
hereof.
IN
NO EVENT WILL THE COMPANY, THE PLACEMENT AGENT, OR ANY OF THEIR AFFILIATES OR
THE PROFESSIONAL ADVISORS ENGAGED BY THEM BE LIABLE IF FOR ANY REASON RESULTS OF
OPERATIONS OF THE COMPANY ARE NOT AS PROJECTED IN THE
MEMORANDUM. INVESTORS MUST LOOK SOLELY TO, AND RELY ON, THEIR OWN
ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES OF INVESTING IN THE
SECURITIES.
17. Title. Manner
in Which Title is To Be Held.
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Place
an “X” in one space below:
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(a)_____
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Individual
Ownership
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(b)_____
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Community
Property
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(c)_____
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Joint
Tenant with Right of Survivorship (both parties must
sign)
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(d)_____
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Partnership
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(e)_____
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Tenants
in Common
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(f)_____
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Corporation
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(g)_____
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Trust
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(h)_____
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Other
(Describe):
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Please
print above the exact name(s) in which the Securities are to be
held.
18. State of
Residence. The Subscriber’s state of residence and the state
in which the Subscriber received the offer to invest and made the decision to
invest in the Securities is ______.
.
19. Date of
Birth. (If an individual) The Subscriber’s date of birth is:
___________________________
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SIGNATURES
The
Subscriber hereby represents that it has read this entire Subscription
Agreement.
Dated: ____________________________
INDIVIDUAL
(includes Community Property, Joint Tenants, Tenants-in-Common)
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Address
to Which Correspondence
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Should
be Directed
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Signature
(Individual)
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Signature
(All record holders should sign)
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City,
State and Zip Code
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Name(s)
Typed or Printed
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Tax
Identification or Social Security Number
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( )
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Telephone
Number
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COPY OF DRIVER’S LICENSE OR
PASSPORT REQUIRED IF NON-BCP CUSTOMER
Customer Identification Program
Notice: To help the government fight the funding of terrorism and
money laundering activities, federal law requires financial institutions to
obtain, verify, and record information that identifies each client. This
means that we will require you to provide the following information: name, date
of birth, address, identification number, and a piece of documentary
identification. If you are an individual and do not have an account with
Bathgate Capital Partners, please include a copy of your driver’s license or
passport. If you are an entity, please provide a copy of your articles of
incorporation, trust document, or other identifying document. If you are unable
to produce the information required, we may not be able to complete your
investment transaction.
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CORPORATION,
PARTNERSHIP, TRUST, RETIREMENT ACCOUNT OR OTHER ENTITY
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Name
of Entity
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Address
to Which Correspondence Should be Directed
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| By: |
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*Signature
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City,
State and Zip Code
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| Its: |
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Title
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Tax
Identification or Social Security Number
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||
|
( )
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Name
Typed or Printed
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Telephone
Number
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*If
Securities are being subscribed for by an entity, the Certificate of Signatory
must also be completed.
CERTIFICATE
OF SIGNATORY
To
be completed if Securities are being subscribed for by an entity.
I, ___________________________, am the
______________________________________of
______________________________(the
“Entity”).
I certify that I am empowered and duly
authorized by the Entity to execute and carry out the terms of the Subscription
Agreement and Letter of Investment Intent and to purchase and hold the
Securities, and certify that the Subscription Agreement and Letter of Investment
Intent has been duly and validly executed on behalf of the Entity and
constitutes a legal and binding obligation of the Entity.
IN WITNESS WHEREOF, I have hereto set
may hand this ______ day of _______, 2009.
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Signature
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COPY OF DRIVER’S LICENSE OR
PASSPORT REQUIRED IF NON-BCP CUSTOMER
Customer Identification Program
Notice: To help the government fight the funding of terrorism and
money laundering activities, federal law requires financial institutions to
obtain, verify, and record information that identifies each client. This
means that we will require you to provide the following information: name, date
of birth, address, identification number, and a piece of documentary
identification. If you are an individual and do not have an account with
Bathgate Capital Partners, please include a copy of your driver’s license or
passport. If you are an entity, please provide a copy of your articles of
incorporation, trust document, or other identifying document. If you are unable
to produce the information required, we may not be able to complete
your investment
transaction.
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ACCEPTANCE
This
Subscription Agreement is accepted as
of _____________________________________, 2009
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APPENDIX
A
BCP
DISCLOSURES
Bathgate
Capital Partners LLC
Privacy Policy Concerning Clients'
Financial Information Dated January 1, 2009
This
privacy disclosure statement puts in writing the privacy policies that BCP
follows. Our policy is based on the recognition that our
clients have an expectation that nonpublic personal information will be kept
confidential. We have adopted this Privacy Policy concerning
information you have provided to us and information we obtained in providing
services to you.
Information
about you is collected in the normal course of business for purposes of
providing services to you. This information is not collected for
resale. We provide information to unaffiliated third parties that is
necessary for us to provide services to you. The information that is
collected, the source of the information and the parties to which the
information is provided are explained below.
Categories
of Nonpublic Information We Collect In the Normal Course of Business:
1. Information
you provide in establishing an account. This is information provided
by you on forms used to open and maintain an account with us and our affiliates
and otherwise provided by you in using our services. Examples of such
information are your name, address, employment, age, assets and investment
objectives and experience.
2. Information
about your transactions. This includes information obtained from you
concerning a transaction that we have done on your behalf. We also
have information about assets held for you. If your account was
transferred to us, we may have received information from another financial
institution. Our Brokerage services are introduced by us to a
clearing firm that effects transactions and maintains assets for
you. We have access to information about these transactions and
assets. We anticipate that the clearing firm will separately provide
you with their privacy policies concerning client financial information that is
collected or available to them.
Categories of Nonpublic
Information That is Disclosed:
We do not
disclose any nonpublic personal information about our clients or former clients
to anyone, except as required or permitted by law. Examples of such
disclosures include:
1. All
information about your account may be disclosed to any person that you
authorized pursuant to the documentation you have provided us. For
example, information about accounts held jointly shall be disclosed to all
persons jointly sharing the account.
2. Any
information that is compelled to be produced by law, such as pursuant to a
subpoena issued by a court.
3. Information
provided with your consent or at your direction, such as disclosure to a
nonaffiliated mortgage lender with whom you are applying for a mortgage
loan.
4. Information
to a financial institution where your account is transferred.
5. Information
provided by us to non-affiliated third parties that assist us in providing our
services to you such as data processing firms that prepare and print your
account statements.
Parties to Whom We May
Disclose Nonpublic Information
We may
disclose both identification and transaction information to affiliated and
non-affiliated parties as permitted by law for the following
reasons:
1. Non-financial
Entities. Such entities include persons we engage to prepare
confirmations, account statements and other account records and transfer agents
to permit the issuance of security certificates to you.
2. Financial
Entities. Such entities include a clearing firm that is a securities
broker-dealer that we
introduce
transactions or accounts in certain types of security
products.
We do not
disclose nonpublic information about our clients to any party except as required
or permitted by law.
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Our Policies Protecting the
Confidentiality of Information About You
We restrict access to nonpublic
personal information about you to those employees and nonaffiliated third
parties who need to know that information so as to enable us to provide products
and services to you.
Such
employees include your account executive, personnel in the trading department
who effect or route your transactions, operations personnel who prepare and
reconcile records of your transactions and your security and money positions,
and management and compliance personnel who oversee our business.
Nonaffiliated
third parties include our clearing firm or others that:
1. Prepare
confirmations, account statements and other records of your
account.
2. Transmit
trade information to securities regulators and other government agencies as
required by applicable rules.
3. Regulate
our business in accordance with applicable law.
4. Maintain
accounts.
5. Facilitate
the clearing and settlement of transactions.
6. Such
other parties as permitted by law.
We
maintain physical, electronic and procedural safeguards to guard against persons
not authorized by us from having access to your nonpublic personal
information.
Internally, we maintain all written
records in secured locations that are accessible only to authorized
personnel. Account executives are provided with transaction records
of accounts that they have responsibility for servicing. Electronic
records are maintained on secure computers that are password
protected. Employees undergo background checks as a condition of
employment.
We
appreciate being able to provide our services to you and will continue to do so
while maintaining the confidentiality of the information needed to provide such
services. If you have any questions concerning this notice, please
call Xxxxx Xxxxxx at (000) 000-0000.
BATHGATE CAPITAL PARTNERS
BUSINESS CONTINUITY PLANNING
Bathgate
Capital Partners LLC has developed a Business Continuity Plan on how we will
respond to events that significantly disrupt our business. Since the
timing and impact of disasters and disruptions is unpredictable, we will have to
be flexible in responding to actual events as they occur. With that
in mind, we are providing you with this information on our business continuity
plan.
Contacting Us – If after a
significant business disruption you cannot contact us as you usually do at
303-694-0862, please go to our web site at
xxx.xxxxxxxxxxxxxxxx.xxx.
Our Business Continuity Plan –
We plan to quickly recover and resume business operations after a significant
business disruption and respond by safeguarding our employees and property,
making a financial and operational assessment, protecting the firm’s books and
records, and allowing our customers to transact business. In short,
our business continuity plan is designed to permit our firm to resume operations
as quickly as possible, given the scope and severity of the significant business
disruption. Our business continuity plan addresses: data back up and
recovery; all mission critical systems; financial and operational assessments;
alternative communications with customers, employees, and regulators; alternate
physical location of employees; critical supplier, contractor, bank and
counter-party impact; regulatory reporting; and assuring our customers prompt
access to their funds and securities if we are unable to continue our business.
Varying Disruptions –
Significant business disruptions can vary in their scope, such as only our firm,
a single building housing our firm, the business district where our firm is
located, the city where we are located, or the whole region. Within
each of these areas, the severity of the disruption can also vary from minimal
to severe. In a disruption to only our firm or a building housing our
firm, we will transfer our operations to a local site when needed and expect to
recover and resume business within an hour. In a disruption affecting
our business district, city, or region, we will transfer our operations to a
site outside of the affected area, and recover and resume business within a few
hours. In either situation, we plan to continue in business, transfer
operations to our clearing firm if necessary, and notify you through our web
site [xxx.xxxxxxxxxxxxxxxx.xxx] or a telephone recording from our main line,
[000-000-0000] how to contact us. If the significant business
disruption is so severe that it prevents us from remaining in business, we will
assure our customer’s prompt access to their funds and securities.
For more information – If you
have questions about our business continuity planning, you can contact us at
(000) 000-0000 or send inquiries to our main office: 0000 X. Xxxxxx Xx. Xxxxx
000 Xxxxxxxxx Xxxxxxx, XX 00000.
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