SUBSCRIPTION AGREEMENT
Exhibit
10.5
000 Xxxxx
Xxxxxx Xxxxxxxxx
Xxxxxx,
XX 00000
This
Subscription Agreement (this “Agreement”)
has been executed by the subscriber set forth in the signature page attached
hereto (the “Subscriber”)
in connection with the private placement offering (the “Offering”)
of a minimum of 1,000,000 and a maximum of 10,000,000 units of securities (the
“PPO
Units”) issued by Crownbutte Wind Power, Inc. (formerly known as ProMana
Solutions, Inc.), a Nevada Corporation (the “Company”),
at a purchase price of $0.50 per PPO Unit. Each PPO Unit consists of
(i) one share of the Company’s common stock, par value $0.001 per share (“Common
Stock”), and (ii) a warrant, substantially in the form of Exhibit A hereto (the
“Warrant”),
representing the right to purchase one share of Common Stock, exercisable for a
period of two years at an exercise price of $2.50 per unit. The
Warrants will be callable by the Company at any time, upon thirty (30) days
prior written notice given to the Warrant holder, if the fair market value (as
defined in the Warrant) of the Common Stock for the twenty (20) consecutive
trading days ending three (3) days prior to the date of the call notice is at
least $3.50, subject to adjustment for stock dividends, stock splits and other
anti-dilution provisions as provided for in the Warrant. This
subscription is being submitted to you in accordance with and subject to the
terms and conditions described in this Agreement and the Confidential Private
Placement Memorandum of the Company dated June 17, 2008, as amended and
supplemented from time to time, including all attachments, schedules and
exhibits thereto (the “Memorandum”),
relating to the Offering.
The PPO
Units being subscribed for pursuant to this Agreement have not been registered
under the Securities Act of 1933, as amended (the “Securities
Act”). The Offering is being made on an “any or all” basis to
“accredited investors,” as defined in Regulation D under the Securities Act, and
non-”U.S. persons,” as defined in Regulation S under the Securities
Act. The Company reserves the right, in its sole discretion and for
any reason, to reject any Subscriber’s subscription in whole or in part, or to
allot less than the number of PPO Units subscribed for.
The
undersigned acknowledges receipt of a copy of the Registration Rights Agreement,
substantially in the form of Exhibit B hereto (the
“Registration
Rights Agreement”).
The
closing of the Offering (the “Closing;”
and the date on which such Closing occurs hereinafter referred to as the “Closing
Date”) shall be at the offices of Gottbetter & Partners, LLP, as
escrow agent (the “Escrow
Agent”), at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other
place as is mutually agreed to by the Company). The Company may
conduct multiple closings for the sale of the PPO Units until the termination of
the Offering. The Offering shall continue until September 15, 2008,
which date may be extended an additional 30 days by the Company.
1. Subscription. The
undersigned Subscriber hereby subscribes to purchase the number of PPO Units set
forth on the signature page attached hereto, at an aggregate price as set forth
on such signature page (the “Purchase
Price”), subject to the terms and conditions of this Agreement and on the
basis of the representations, warranties, covenants and agreements contained
herein.
2. Subscription
Procedure. To complete a subscription for the PPO Units, the
Subscriber must fully comply with the subscription procedure provided in this
Section on or before the Closing Date.
a. Transaction
Documents. On or before the Closing Date, the Subscriber shall
review, complete and execute the Omnibus Signature Page to this Agreement and
the Investor Certification, attached hereto as Appendix A
(collectively, the “Transaction
Documents”), and deliver the Transaction Documents to the Escrow
Agent. Executed documents may be delivered to the Escrow Agent by
facsimile or electronic mail (e-mail), if the Subscriber delivers the original
copies of the documents to the Escrow Agent as soon as practicable
thereafter.
b. Purchase
Price. Simultaneously with the delivery of the Transaction
Documents to the Escrow Agent as provided herein, and in any event on or prior
to the Closing Date, the Subscriber shall deliver to the Escrow Agent the full
Purchase Price by check or by wire transfer of immediately available
funds.
c. Company
Discretion. The Subscriber understands and agrees that the
Company in its sole discretion reserves the right to accept or reject this or
any other subscription for PPO Units, in whole or in part, notwithstanding prior
receipt by the Subscriber of notice of acceptance of this
subscription. The Company shall have no obligation hereunder until
the Company shall execute and deliver to the Subscriber an executed copy of this
Agreement. If this subscription is rejected in whole, or the offering
of PPO Units is terminated, all funds received from the Subscriber will be
returned without interest or offset, and this Agreement shall thereafter be of
no further force or effect. If this subscription is rejected in part,
the funds for the rejected portion of this subscription will be returned without
interest or offset, and this Agreement will continue in full force and effect to
the extent this subscription was accepted.
3. Representations and Warranties of the
Company. The Company hereby represents and warrants to the
Subscriber the following:
a. Organization and
Qualification. The Company is a corporation duly organized and
validly existing under the laws of the State of Nevada. The Company
has all requisite power and authority to carry on its business as currently
conducted, other than such failures that would not reasonably be expected to
have a material adverse effect on the Company’s business, properties or
financial condition (a “Material
Adverse Effect”). The Company is duly qualified to transact
business in each jurisdiction in which the failure to be so qualified would
reasonably be expected to have a Material Adverse Effect.
b. Authorization. As
of the Closing, all action on the part of the Company, its board of directors,
officers and existing stockholders necessary for the authorization, execution
and delivery of this Agreement, the Registration Rights Agreement, the Warrant
and the performance of all obligations of the Company hereunder and thereunder
shall have been taken, and this Agreement, the Registration Rights Agreement and
the Warrant, assuming due execution by the parties hereto and thereto, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, subject to: (i) judicial principles
limiting the availability of specific performance, injunctive relief, and other
equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect generally relating to or
affecting creditors’ rights.
2
c. Valid Issuance of the Common
Stock and the Warrant. The shares of Common Stock and the
Warrant, when issued, sold and delivered in accordance with the terms of this
Agreement for the consideration expressed herein, and the shares of Common Stock
underlying the Warrant, when issued and delivered in accordance with the terms
of the Warrant, shall be duly and validly issued and will be free of
restrictions on transfer directly or indirectly created by the Company other
than restrictions on transfer under this Agreement, the Registration Rights
Agreement and the terms of the Warrant and under applicable federal and state
securities laws.
d. Governmental
Consents. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the offer, sale or issuance of the PPO Units, except
for the following: (i) the filing of such notices as may be required under the
Securities Act and (ii) the compliance with any applicable state securities
laws, which compliance will have occurred within the appropriate time periods
therefor.
e. Litigation. There
are no actions, suits, proceedings or investigations pending or, to the best of
the Company’s knowledge, threatened before any court, administrative agency or
other governmental body against the Company which question the validity of this
Agreement, the Registration Rights Agreement or the Warrant, or the right of the
Company to enter into any of them, or to consummate the transactions
contemplated hereby or thereby, or which would reasonably be expected to have a
Material Adverse Effect. The Company is not a party or subject to,
and none of its assets is bound by, the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality which would reasonably be expected to have a Material Adverse
Effect.
f. Compliance with Other
Instruments. The Company is not in violation or default of any
provision of its Articles of Incorporation, each as in effect immediately prior
to the Closing, except for such failures as would not reasonably be expected to
have a Material Adverse Effect. The Company is not in violation or default of
any provision of any material instrument, mortgage, deed of trust, loan,
contract, commitment, judgment, decree, order or obligation to which it is a
party or by which it or any of its properties or assets are bound which would
reasonably be expected to have a Material Adverse Effect. To the best
of its knowledge, the Company is not in violation or default of any provision of
any federal, state or local statute, rule or governmental regulation which would
reasonably be expected to have a Material Adverse Effect. The
execution, delivery and performance of and compliance with this Agreement, the
Registration Rights Agreement and the issuance and sale of the PPO Units, will
not result in any such violation, be in conflict with or constitute, with or
without the passage of time or giving of notice, a default under any such
provision, require any consent or waiver under any such provision (other than
any consents or waivers that have been obtained), or result in the creation of
any mortgage, pledge, lien, encumbrance or charge upon any of the properties or
assets of the Company pursuant to any such provision.
3
g. Certain Registration
Matters. Assuming the accuracy of the Subscriber’s
representations and warranties set forth in this Agreement and the Transaction
Documents, and the representations and warranties made by all other purchasers
of PPO Units in the Offering, no registration under the Securities Act is
required for the offer and sale of the PPO Units by the Company to the
Subscriber hereunder.
h. No General
Solicitation. Neither the Company nor any person acting on
behalf of the Company has offered or sold any of the PPO Units by any form of
general solicitation or general advertising (within the meaning of Regulation
D).
4. Representations and Warranties of the
Subscriber. The Subscriber represents and warrants to the
Company the following:
a. The
Subscriber, its advisers, if any, and designated representatives, if any, have
the knowledge and experience in financial and business matters necessary to
evaluate the merits and risks of its prospective investment in the Company, and
have carefully reviewed and understand the risks of, and other considerations
relating to, the purchase of PPO Units and the tax consequences of the
investment, and have the ability to bear the economic risks of the
investment.
b. The
Subscriber is acquiring the PPO Units for investment for its own account and not
with the view to, or for resale in connection with, any distribution
thereof. The Subscriber understands and acknowledges that the PPO
Units, the shares of Common Stock and the Warrant have not been registered under
the Securities Act or any state securities laws, by reason of a specific
exemption from the registration provisions of the Securities Act and applicable
state securities laws, which depends upon, among other things, the bona fide
nature of the investment intent as expressed herein. The Subscriber
further represents that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to any
third person with respect to any of the PPO Units, the shares of Common Stock
and the Warrant. The Subscriber understands and acknowledges that the
offering of the PPO Units pursuant to this Agreement will not be registered
under the Securities Act nor under the state securities laws on the ground that
the sale provided for in this Agreement and the issuance of securities hereunder
is exempt from the registration requirements of the Securities Act and any
applicable state securities laws.
c. The
Subscriber understands that no public market now exists for the shares of Common
Stock, and that there may never be a public market for the shares of Common
Stock.
d. The
Subscriber, its advisers, if any, and designated representatives, if any, have
received and reviewed information about the Company and have had an opportunity
to discuss the Company’s business, management and financial affairs with its
management. The Subscriber understands that such discussions, as well
as any written information provided by the Company, were intended to describe
the aspects of the Company’s business and prospects which the Company believes
to be material, but were not necessarily a thorough or exhaustive description,
and except as expressly set forth in this Agreement, the Company makes no
representation or warranty with respect to the completeness of such information
and makes no representation or warranty of any kind with respect to any
information provided by any entity other than the Company. Some of
such information includes projections as to the future performance of the
Company, which projections may not be realized, are based on assumptions which
may not be correct and are subject to numerous factors beyond the Company’s
control.
4
e. As
of the Closing, all action on the part of Subscriber, and its officers,
directors and partners, if applicable, necessary for the authorization,
execution and delivery of this Agreement and the Registration Rights Agreement
and the performance of all obligations of the Subscriber hereunder and
thereunder shall have been taken, and this Agreement and the Registration Rights
Agreement, assuming due execution by the parties hereto and thereto, constitute
valid and legally binding obligations of the Subscriber, enforceable in
accordance with their respective terms, subject to: (i) judicial principles
limiting the availability of specific performance, injunctive relief, and other
equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect generally relating to or
affecting creditors’ rights.
f. The
Subscriber either (i) is an “accredited investor” as defined in Rule 501 of
Regulation D as promulgated by the Securities and Exchange Commission under the
Securities Act or (ii) is not a “U.S. Person” as defined in Regulation S as
promulgated by the Securities and Exchange Commission under the Securities Act,
and, in each case, shall submit to the Company such further assurances of such
status as may be reasonably requested by the Company.
g. The
Subscriber or its duly authorized representative realizes that because of the
inherently speculative nature of investments of the kind contemplated by the
Company, the Company’s investment results may be expected to fluctuate from
month to month and from period to period and will, generally, involve a high
degree of financial and market risk that can result in substantial or, at times,
even total losses.
h. The
Subscriber has adequate means of providing for its current and anticipated
financial needs and contingencies, is able to bear the economic risk for an
indefinite period of time and has no need for liquidity of the investment in the
PPO Units and could afford complete loss of such investment.
i. The
Subscriber is not subscribing for PPO Units as a result of or subsequent to any
advertisement, article, notice or other communication, published in any
newspaper, magazine or similar media or broadcast over television, radio, or the
internet, or presented at any seminar or meeting, or any solicitation of a
subscription by a person not previously known to the Subscriber in connection
with investments in securities generally.
j. The
Subscriber agrees to be bound by all of the terms and conditions of the
Registration Rights Agreement and to perform all obligations thereby imposed
upon it.
k. All
of the information that the Subscriber has heretofore furnished or which is set
forth herein is correct and complete as of the date of this Agreement, and, if
there should be any material change in such information prior to the admission
of the undersigned to the Company, the Subscriber will immediately furnish
revised or corrected information to the Company.
5
5. Transfer
Restrictions. The Subscriber acknowledges and agrees as
follows:
a. The
PPO Units, the shares of Common Stock and the Warrant have not been registered
for sale under the Securities Act, in reliance on the private offering exemption
in Section 4(2) thereof; the Company does not intend to register the PPO Units,
the shares of Common Stock and the Warrant under the Securities Act at any time
in the future; and the undersigned will not be entitled to the benefits of Rule
144 with respect to the PPO Units, the shares of Common Stock and the
Warrant.
b. No
governmental agency has passed upon the PPO Units, the shares of Common Stock
and the Warrant or made any finding or determination as to the wisdom of any
investments therein.
c. There
are substantial restrictions on the transferability of the shares of Common
Stock, and if the Company decides to issue certificates representing the shares
of Common Stock, restrictive legends will be placed on any such
certificates.
6. Indemnification. The
Subscriber agrees to indemnify and hold harmless the Company, Strasbourger
Xxxxxxx Tulcin Xxxxx, Inc., as placement agent in the Offering, and their
respective officers, directors, employees, agents, control persons and
affiliates from and against all losses, liabilities, claims, damages, costs,
fees and expenses whatsoever (including, but not limited to, any and all
expenses incurred in investigating, preparing or defending against any
litigation commenced or threatened) based upon or arising out of any actual or
alleged false acknowledgment, representation or warranty, or misrepresentation
or omission to state a material fact, or breach by the Subscriber of any
covenant or agreement made by the Subscriber herein or in any other document
delivered in connection with this Agreement.
7. Irrevocability; Binding
Effect. The Subscriber hereby acknowledges and agrees that the
subscription hereunder is irrevocable by the Subscriber, except as required by
applicable law, and that this Agreement shall survive the death or disability of
the Subscriber and shall be binding upon and inure to the benefit of the parties
and their heirs, executors, administrators, successors, legal representatives
and permitted assigns. If the Subscriber is more than one person, the
obligations of the Subscriber hereunder shall be joint and several and the
agreements, representations, warranties and acknowledgments herein shall be
deemed to be made by and be binding upon each such person and such person’s
heirs, executors, administrators, successors, legal representatives and
permitted assigns.
8. Modification. This
Agreement shall not be modified or waived except by an instrument in writing
signed by the party against whom any such modification or waiver is
sought.
9. Immaterial Modifications to the
Registration Rights
Agreement. The Company may, at any
time prior to the initial Closing, amend the Registration Rights Agreement if
necessary to clarify any provision therein, without first providing notice or
obtaining prior consent of the Subscriber.
6
10. Notices. Any notice
or other communication required or permitted to be given hereunder shall be in
writing and shall be mailed by certified mail, return receipt requested, or
delivered against receipt to the party to whom it is to be given (a) if to the
Company, at the address set forth above, or (b) if to the Subscriber, at the
address set forth on the signature page hereof (or, in either case, to such
other address as the party shall have furnished in writing in accordance with
the provisions of this Section 10). Any notice or other communication
given by certified mail shall be deemed given at the time of certification
thereof, except for a notice changing a party’s address which shall be deemed
given at the time of receipt thereof.
11. Assignability. This
Agreement and the rights, interests and obligations hereunder are not
transferable or assignable by the Subscriber and the transfer or assignment of
the PPO Units, the shares of Common Stock, the Warrant or the shares of Common
Stock underlying the Warrants shall be made only in accordance with all
applicable laws.
12. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to the
principles thereof relating to the conflict of laws.
13. Arbitration. The
parties agree to submit all controversies to arbitration in accordance with the
provisions set forth below and understand that:
(a) Arbitration
is final and binding on the parties.
(b) The
parties are waiving their right to seek remedies in court, including the right
to a jury trial.
(c) Pre-arbitration
discovery is generally more limited and different from court
proceedings.
(d) The
arbitrator’s award is not required to include factual findings or legal
reasoning and any party’s right to appeal or to seek modification of rulings by
arbitrators is strictly limited.
(e) The
panel of arbitrators will typically include a minority of arbitrators who were
or are affiliated with the securities industry.
(f) All
controversies which may arise between the parties concerning this Agreement
shall be determined by arbitration pursuant to the rules then pertaining to the
Financial Industry Regulatory Authority in New York City, New
York. Judgment on any award of any such arbitration may be entered in
the Supreme Court of the State of New York or in any other court having
jurisdiction of the person or persons against whom such award is
rendered. Any notice of such arbitration or for the confirmation of
any award in any arbitration shall be sufficient if given in accordance with the
provisions of this Agreement. The parties agree that the
determination of the arbitrators shall be binding and conclusive upon
them.
7
14. Blue Sky
Qualification. The purchase of PPO Units under this Agreement
is expressly conditioned upon the exemption from qualification of the offer and
sale of the PPO Units from applicable federal and state securities
laws. The Company shall not be required to qualify this transaction
under the securities laws of any jurisdiction and, should qualification be
necessary, the Company shall be released from any and all obligations to
maintain its offer, and may rescind any sale contracted, in the
jurisdiction.
15. Use of
Pronouns. All pronouns and any variations thereof used herein
shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the person or persons referred to may require.
16. Confidentiality. The
Subscriber acknowledges and agrees that any information or data the Subscriber
has acquired from or about the Company, not otherwise properly in the public
domain, including, without limitation, the business summary of the Company, was
received in confidence. The Subscriber agrees not to divulge,
communicate or disclose, except as may be required by law or for the performance
of this Agreement, or use to the detriment of the Company or for the benefit of
any other person, or misuse in any way, any confidential information of the
Company, including any scientific, technical, trade or business secrets of the
Company and any scientific, technical, trade or business materials that are
treated by the Company as confidential or proprietary, including, but not
limited to, ideas, discoveries, inventions, developments and improvements
belonging to the Company and confidential information obtained by or given to
the Company about or belonging to third parties.
17. Miscellaneous.
(a) This
Agreement, together with the Registration Rights Agreement, constitute the
entire agreement between the Subscriber and the Company with respect to the
subject matter hereof and supersede all prior oral or written agreements and
understandings, if any, relating to the subject matter hereof. The
terms and provisions of this Agreement may be waived, or consent for the
departure therefrom granted, only by a written document executed by the party
entitled to the benefits of such terms or provisions.
(b) The
representations and warranties of the Company and the Subscriber made in this
Agreement shall survive the execution and delivery hereof and delivery of the
Common Stock and the Warrants contained in the PPO Units.
(c) 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.
(d) This
Agreement may be executed in one or more original or facsimile counterparts,
each of which shall be deemed an original, but all of which shall together
constitute one and the same instrument.
8
(e) Each
provision of this Agreement shall be considered separable and, if for any reason
any provision or provisions hereof are determined to be invalid or contrary to
applicable law, such invalidity or illegality shall not impair the operation of
or affect the remaining portions of this Agreement.
(f) Paragraph
titles are for descriptive purposes only and shall not control or alter the
meaning of this Agreement as set forth in the text.
(g) The
Subscriber understands and acknowledges that there may be multiple Closings for
the Offering.
(h) The
Subscriber hereby agrees to furnish the Company such other information as the
Company may request prior to the Closing with respect to its subscription
hereunder.
18. Omnibus Signature
Page. This Agreement is intended to be read and construed in
conjunction with the Registration Rights Agreement pertaining to the issuance by
the Company of the PPO Units, the shares of Common Stock, the Warrant and the
shares of Common Stock underlying the Warrant to subscribers in the
Offering. Accordingly, pursuant to the terms and conditions of this
Agreement and such related agreements, it is hereby agreed that the execution by
the Subscriber of this Agreement, in the place set forth herein, shall
constitute agreement to be bound by the terms and conditions hereof and the
terms and conditions of the Registration Rights Agreement, with the same effect
as if each of such separate but related agreement were separately
signed.
19. Public
Disclosure. Neither the Subscriber nor any officer, manager,
director, member, partner, stockholder, employee, affiliate, affiliated person
or entity of the Subscriber shall make or issue any press releases or otherwise
make any public statements or make any disclosures to any third person or entity
with respect to the transactions contemplated herein and will not make or issue
any press releases or otherwise make any public statements of any nature
whatsoever with respect to the Company without the Company’s express prior
approval. The Company has the right to withhold such approval in its
sole discretion.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
9
How
to subscribe for PPO Units in the private offering of
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1.
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Date and Fill in the
number of PPO Units being purchased and Complete and Sign the
Omnibus Signature Page.
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2.
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Initial the Investor
Certification page.
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3.
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Fax or
email
all forms and then send all signed original documents, along with a
check or wire transfer representing the exact dollar amount of the number
of PPO Units for subscription,
to:
|
Gottbetter
& Partners, LLP
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Facsimile
Number: (000) 000-0000
Telephone
Number: (000) 000-0000
Attn: Xxxxxx
X. XxXxxxxx
E-mail
Address: xxx@xxxxxxxxxx.xxx
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4.
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Any
check for the subscription of PPO Units should be made payable to the
order of “Gottbetter
& Partners, LLP, Escrow Agent for CROWNBUTTE WIND POWER,
INC.”.
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5.
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If
the funds are being sent by wire transfer to the escrow account, please
see the
following instructions:
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Bank:
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Citibank,
N.A.
000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
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ABA
Routing #:
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000000000
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Swift
Code:
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XXXXXX00
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Beneficiary:
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Gottbetter
& Partners, LLP, Attorney Trust Account
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Account
#:
|
00000000
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Reference:
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“Crownbutte
Wind Power, Inc. – [insert Subscriber’s
name]”
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Gottbetter
& Partners Accounting Contact:
Xxxxxxx
XxXxxxx; telephone: (000) 000-0000; e-mail: xxx@xxxxxxxxxx.xxx.
Thank you
for your interest,
10
OMNIBUS
SIGNATURE PAGE TO
REGISTRATION
RIGHTS AGREEMENT
IN
WITNESS WHEREOF, the Subscriber hereby executes this Subscription Agreement and
the Registration Rights Agreement.
Dated: ,
2008
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SUBSCRIBER
(individual)
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SUBSCRIBER
(entity)
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||
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Signature
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Name
of Entity
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||
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Print
Name
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Signature
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Print Name:
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|||
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Signature
(if Joint Tenants or Tenants in Common)
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|||
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Title:
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|||
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Address
of Principal Residence:
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Address
of Executive Offices:
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Social
Security Number(s):
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IRS
Tax Identification Number:
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Telephone
Number:
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Telephone
Number:
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Facsimile
Number:
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Facsimile
Number:
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||
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E-mail
Address:
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E-mail
Address:
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X
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$0.50
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=
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$
|
|
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Number
of PPO Units
|
Price
per PPO Unit
|
Purchase
Price
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|||
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IN
WITNESS WHEREOF, the Company has duly executed this Subscription
Agreement.
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By:
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Chief
Executive
Officer
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12
For
Individual Accredited Investors Only
(all
Individual Accredited Investors must INITIAL where
appropriate):
|
Initial
_______
|
I
have a net worth (including home, furnishings and automobiles) in excess
of $1,000,000 either individually or through aggregating my individual
holdings and those in which I have a joint, community property or other
similar shared ownership interest with my
spouse.
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Initial
_______
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I
have had an annual gross income for the past two years of at least
$200,000 (or $300,000 jointly with my spouse) and expect my income (or
joint income, as appropriate) to reach the same level in the current
year.
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For Non-Individual Accredited
Investors
(all Non-Individual Accredited
Investors must INITIAL where
appropriate):
|
Initial
_______
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The
investor certifies that it is a partnership, corporation, limited
liability company or business trust that is 100% owned by persons who meet
at least one of the criteria for Individual Investors set forth
above.
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Initial
_______
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The
investor certifies that it is a partnership, corporation, limited
liability company or business trust that has total assets of at least $5
million and was not formed for the purpose of investing in the
Company.
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Initial
_______
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The
investor certifies that it is an employee benefit plan whose investment
decision is made by a plan fiduciary (as defined in ERISA §3(21)) that is
a bank, savings and loan association, insurance company or registered
investment adviser.
|
|
Initial
_______
|
The
investor certifies that it is an employee benefit plan whose total assets
exceed $5,000,000 as of the date of this
Agreement.
|
|
Initial
_______
|
The
undersigned certifies that it is a self-directed employee benefit plan
whose investment decisions are made solely by persons who meet either of
the criteria for Individual
Investors.
|
|
Initial
_______
|
The
investor certifies that it is a U.S. bank, U.S. savings and loan
association or other similar U.S. institution acting in its individual or
fiduciary capacity.
|
|
Initial
_______
|
The
undersigned certifies that it is a broker-dealer registered pursuant to
§15 of the Securities Exchange Act of
1934.
|
|
Initial
_______
|
The
investor certifies that it is an organization described in §501(c)(3) of
the Internal Revenue Code with total assets exceeding $5,000,000 and not
formed for the specific purpose of investing in the
Company.
|
|
Initial
_______
|
The
investor certifies that it is a trust with total assets of at least
$5,000,000, not formed for the specific purpose of investing in the
Company, and whose purchase is directed by a person with such knowledge
and experience in financial and business matters that he is capable of
evaluating the merits and risks of the prospective
investment.
|
|
Initial
_______
|
The
investor certifies that it is a plan established and maintained by a state
or its political subdivisions, or any agency or instrumentality thereof,
for the benefit of its employees, and which has total assets in excess of
$5,000,000.
|
|
Initial
_______
|
The
investor certifies that it is an insurance company as defined in §2(13) of
the Securities Act, or a registered investment
company.
|
13
Appendix
A
For
Non-U.S. Person Investors
(all Investors who are not a U.S.
Person must INITIAL this section):
|
Initial
_______
|
The
Investor is not a “U.S. Person” as defined in Regulation S; and
specifically the Purchaser is not:
|
|
|
A.
|
a
natural person resident in the United States of America, including its
territories and possessions (“United
States”);
|
|
|
B.
|
a
partnership or corporation organized or incorporated under the laws of the
United States;
|
|
|
C.
|
an
estate of which any executor or administrator is a U.S.
Person;
|
|
|
D.
|
a
trust of which any trustee is a U.S.
Person;
|
|
|
E.
|
an
agency or branch of a foreign entity located in the United
States;
|
|
|
F.
|
a
non-discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a
U.S. Person;
|
|
|
G.
|
a
discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary organized, incorporated, or (if an
individual) resident in the United States;
or
|
|
|
H.
|
a
partnership or corporation: (i) organized or incorporated under the laws
of any foreign jurisdiction; and (ii) formed by a U.S. Person principally
for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
accredited investors (as defined in Rule 501(a) under the Act) who are not
natural persons, estates or trusts.
|
And, in
addition:
|
|
I.
|
the
Purchaser was not offered the Units in the United
States;
|
|
|
J.
|
at
the time the buy-order for the Units was originated, the Purchaser was
outside the United States; and
|
| K. | the Purchaser is purchasing the Units for its own account and not on behalf of any U.S. Person (as defined in Regulation S) and a sale of the Units has not been pre-arranged with a purchaser in the United States. |
