CELESTIAL VENTURES CORPORATION
REGULATION S
COMMON STOCK PURCHASE AGREEMENT
AUGUST 4, 1997
THE SECURITIES TO WHICH THIS AGREEMENT RELATES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES LAWS ("BLUE SKY LAWS"), AND MAY NOT BE OFFERED OR SOLD IN THE UNITED
STATES OR TO U.S. PERSONS (AS DEFINED IN REGULATION S) WITHOUT REGISTRATION
UNDER THE SECURITIES ACT, AND AS REQUIRED BY BLUE SKY LAWS IN EFFECT AS TO SUCH
TRANSFER, UNLESS AN EXEMPTION FROM SUCH REGISTRATION UNDER STATE AND FEDERAL LAW
IS AVAILABLE.
Number 22 of 36
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THE SECURITIES TO WHICH THIS AGREEMENT RELATES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES LAWS ("BLUE SKY LAWS"), AND MAY NOT BE OFFERED OR SOLD IN THE UNITED
STATES OR TO U.S. PERSONS (AS DEFINED IN REGULATION S) WITHOUT REGISTRATION
UNDER THE SECURITIES ACT, AND AS REQUIRED BY BLUE SKY LAWS IN EFFECT AS TO SUCH
TRANSFER, UNLESS AN EXEMPTION FROM SUCH REGISTRATION UNDER STATE AND FEDERAL LAW
IS AVAILABLE.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT is made effective for reference
purposes only as of August 4, 1997, by and between CELESTIAL VENTURES
CORPORATION, a Nevada corporation (the "Corporation") and the investor whose
name and signature appears on the signature page to this Agreement (the
"Investor").
RECITAL
The Investor desires to purchase from the Corporation, and the
Corporation desires to sell to the Investor, certain common stock shares of the
Corporation, on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
representations and warranties contained in this Agreement, the parties hereby
agree as follows:
1. PURCHASE AND SALE OF SHARES.
a. SALE AND ISSUANCE OF SHARES. Subject to the terms and
conditions of this Agreement, the undersigned Investor agrees to purchase at the
Closing (as defined below) and the Corporation agrees to sell and issue to the
Investor at the Closing, that number of common stock shares (the "Shares") set
forth under Schedule 1 at the price set forth under Schedule 1 (the "Purchase
Price"). All monetary references in this Agreement are to United States of
America dollars.
b. PAYMENT AND DELIVERY. The Investor shall purchase the
Shares by making payment to CELESTIAL VENTURES CORPORATION in cash by check or
wire transfer of funds of the Purchase Price delivered to the Corporation on, or
before, the date set forth on Schedule 1 attached to the signature page hereto
(the "Closing").
2. DELIVERY OF SHARES. Upon the Investor's delivery of the Purchase
Price in full and a fully executed and completed original of this Agreement to
the Corporation, and after the Corporation determines that all applicable
securities laws have been satisfied, the Corporation will deliver to the
Investor at the address indicated on Schedule 1 within five (5) business days
after the Closing a share certificate for the Shares dated as of the Closing. As
of
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the Closing, the Investor shall be deemed the owner of the Shares. Investor
shall provide the Corporation with instructions for registration and delivery of
the Shares as set forth on Schedule 1. Any instructions for registration of the
Shares in a name other than that of the Investor shall require such registered
owner to affirm Investor's warranties and representations set forth herein.
3. CORPORATION'S REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Corporation hereby represents, warrants and covenants to the Investor as
follows:
a. CORPORATE ORGANIZATION AND STANDING. The Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada. The Corporation has the requisite corporate power to
carry on its business as presently conducted, and as proposed or contemplated to
be conducted in the future, and to enter into and carry out the provisions of
this Agreement and the transactions contemplated hereby. The Corporation is duly
qualified to do business in the jurisdictions where it is currently doing
business.
b. AUTHORIZATION. All corporate action on the part of the
Corporation, its directors and shareholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Corporation and the
performance of all of the Corporation's obligations hereunder has been taken.
This Agreement, when executed and delivered by the Corporation, shall constitute
a valid and binding obligation of the Corporation, enforceable in accordance
with its terms, except as may be limited by principles of public policy, and
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies. The Shares, when issued in
compliance with the provisions of this Agreement, will be validly issued, fully
paid and nonassessable. The Corporation is, and at all times during the offer
and sale of the Shares, will be a "reporting issuer" as that term is defined
under Regulation S.
c. NO BREACH. The issue and sale of the Shares by the
Corporation does not and will not conflict with and does not and will not result
in a breach of any of the terms of the Corporation's incorporating documents or
any agreement or instrument to which the Corporation is a party. The
consummation of the transactions or performance of the obligations contemplated
by this Agreement will not result in a breach of any term of, or constitute a
default under, any statute, indenture, mortgage, or other agreement or
instrument or any order, writ, judgment or decree to which the Corporation or
any of its subsidiaries is or are a party or by which any of them is or are
bound.
d. NO PREEMPTIVE RIGHTS. There are no preemptive rights
of any shareholder of the Corporation with respect to the Shares.
e. AUTHORIZED SHARES. The Corporation has sufficient
authorized and unissued shares of its common stock to provide for the issuance
and delivery of the Shares as provided under this Agreement.
f. COMPLIANCE WITH REGULATION S. The Corporation represents
and warrants that it has complied, and covenants that until the end of the
applicable Regulation S
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restricted period it will comply with all of the requirements of Rule 903(a),
(b) and (c)(3) of Regulation S applicable to the Corporation with respect to the
offer and sale of the Shares, including but not limited to the requirement not
to engage in any "directed selling efforts" (as defined in Regulation S) in the
United States with respect to the Shares.
4. INVESTOR REPRESENTATIONS AND WARRANTIES. The Investor represents
and warrants to the Corporation that:
a. ACCOUNT/REGULATION S. The Investor is acquiring the Shares
for investment for its own account, and not with a view to, or for resale in
connection with, any distribution thereof, and it has no present intention of
selling or distributing any of the Shares. The Investor understands that the
Shares have not been registered under the Securities Act of 1933, as amended
(the "Securities Act") by reason of a specific exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the investment as expressed herein. The Investor understands
that the Corporation is relying on the rules and regulations governing offers
and sales made outside the United States to non-"U.S. Persons" pursuant to
Regulation S under the Securities Act.
b. ACCESS TO DATA. The Investor has had an opportunity to
discuss the Corporation's business, management and financial affairs with its
management and to obtain any additional information which the Investor has
deemed necessary or appropriate for deciding whether or not to purchase the
Shares, including an opportunity to receive, review and understand the
disclosures and information regarding the Corporation's financial statements,
capitalization and other business information as set forth in Corporation's
filings with the Securities and Exchange Commission through March 31, 1997, all
incorporated herein by reference, together with all exhibits referenced therein.
The Investor acknowledges that no other representations or warranties, oral or
written, have been made by the Corporation or any agent thereof except as set
forth in this Agreement.
c. NO FAIRNESS DETERMINATION. The Investor is aware that no
federal, state or other agency has made any finding or determination as to the
fairness of the investment, nor made any recommendation or endorsement of the
Shares.
d. KNOWLEDGE AND EXPERIENCE. The Investor has such knowledge
and experience in financial and business matters, including investments in other
start-up companies, that it is capable of evaluating the merits and risks of the
investment in the Shares, and it is able to bear the economic risk of such
investment. Further, the individual executing this Agreement has such knowledge
and experience in financial and business matters that he is capable of utilizing
the information made available to him in connection with the offering of the
Shares, of evaluating the merits and risks of an investment in the Shares and of
making an informed investment decision with respect to the Shares, including
assessment of the Risk Factors set forth below.
e. LIMITED PUBLIC MARKET. The Investor is aware that there is
currently a very limited "over-the-counter" public market for the Corporation's
registered securities and that the Corporation became a "reporting issuer" under
the Securities Exchange Act of 1934, as amended, on or about 1987. There is no
guarantee that a more established public market will
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develop at any time in the future. The Investor understands that the Shares are
all unregistered and may not presently be sold in even this limited public
market. The Investor understands that the Shares cannot be readily sold or
liquidated in case of an emergency or other financial need. The Investor has
sufficient liquid assets available so that the purchase and holding of the
Shares will not cause it undue financial difficulties.
f. INVESTMENT EXPERIENCE. The Investor is an "accredited
investor" as that term is defined in Regulation D promulgated by the Securities
and Exchange Commission. The term "Accredited Investor" under Regulation D
refers to:
(i) A person or entity who is a director or
executive officer of the Corporation;
(ii) Any bank as defined in Section 3(a)(2) of the
Securities Act, or any savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the Securities Act whether acting in its
individual or fiduciary capacity; any broker or dealer registered pursuant to
Section 15 of the Exchange Act; insurance company as defined in Section 2(13) of
the Securities Act; investment company registered under the Investment Company
Act of 1940; or a business development Corporation as defined in Section
2(a)(48) of that Act; 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; any 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; employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974, if the investment decision is
made by a plan fiduciary, as defined in Section 3(21) of such Act, 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 decision made solely
by persons that are accredited investors;
(iii) Any private business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
(iv) Any organization described in Section 501(c)(3)
of the Internal Revenue Code, corporation, Massachusetts or similar business
trust, or partnership, not formed for the specific purpose of acquiring the
Shares offered, with total assets in excess of $5,000,000;
(v) Any natural person whose individual net worth, or
joint net worth with that person's spouse, at the time of his purchase exceeds
$1,000,000;
(vi) Any natural person who had an individual income
in excess of $200,000 during each of the previous two years or joint income
with that person's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current year;
(vii) Any trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring the Shares
offered, whose purchase is directed by a person who
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has such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of the prospective investment; or
(viii) Any entity in which all of the equity owners
are accredited investors.
As used in this Section 4(f), the term "net worth" means the excess of total
assets over total liabilities. For the purpose of determining a person's net
worth, the principal residence owned by an individual should be valued at fair
market value, including the cost of improvements, net of current encumbrances.
As used in this Section 4(f), "income" means actual economic income, which may
differ from adjusted gross income for income tax purposes. Accordingly, the
undersigned should consider whether it should add any or all of the following
items to its adjusted gross income for income tax purposes in order to reflect
more accurately its actual economic income: Any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any limited
partnership, deductions claimed for depletion, contributions to an XXX or Xxxxx
retirement plan, and alimony payments.
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5. RESTRICTIONS ON TRANSFER RE: REGULATION S.
a. NOT A "U.S. PERSON." The Investor hereby certifies that (i)
it is not a "U.S. Person" as defined under Rule 902, Section (o) of Regulation S
promulgated under the Securities Act (a copy of which is attached hereto as
Schedule 2) and is not acquiring the Shares for the account or benefit of any
U.S. Person, and (ii) it is acquiring the Shares in an "offshore transaction" as
defined under Section (i) of such Rule 902 (a copy of which is attached hereto
as Schedule 3). The Investor acknowledges that offers respecting the sale of
Common Stock directed to it by the Company were received outside of the U.S. and
that the Investor did not engage in or direct any unsolicited offers to buy
Shares of Common Stock of the Company into the U.S.
b. TRANSFER RESTRICTIONS. The Investor shall not attempt to
have registered any transfer of the Shares not made in accordance with the
provisions of Regulation S and the Corporation shall be required during the
Regulation S restricted period to refuse to register any transfer of the Shares
that is not made in accordance with the provisions of Regulation S, unless such
refusal is prohibited by foreign law. The Investor agrees that the Shares
acquired by the Investor pursuant to this Agreement shall not be voluntarily
sold, transferred or otherwise disposed of for a minimum period of FORTY (40)
CALENDAR DAYS from the Closing Date. In addition to any other restrictions on
transfer set forth in this Agreement, the Investor agrees to transfer the Shares
only (i) in accordance with the provisions of Regulation S, pursuant to
registration under the Securities Act, or pursuant to an available exemption
from registration, and (ii) in accordance with any applicable state securities
laws. Unless so registered or exempt therefrom, such transfer restrictions shall
include but not be limited to and the Investor warrants and represents the
following:
(i) The Investor shall not sell the Shares publicly
or privately, or through any short sale, or other hedging transaction to any
U.S. Person, whether directly or indirectly, or for the account or benefit of
any such U.S. Person for the restricted period mandated by Regulation S after
the purchase of the Shares unless registered or exempt from registration;
(ii) Any other offer or sale of the Shares shall be
made only if (A) during the restricted period any subsequent purchaser certifies
in writing that it is not a U.S. Person and is not acquiring the Shares for the
account or benefit of any U.S. Person, or (B) after the restricted period the
Shares are purchased in a transaction that did not require registration under
the Securities Act and applicable Blue Sky laws; and
(iii) Any transferee of the Shares who acquires the
Shares during the Regulation S restricted period shall agree in writing to
resell the Shares only in accordance with the provisions of Regulation S,
pursuant to registration under the Securities Act, or pursuant to an available
exemption from registration.
(iv) The Investor understands that any disposition
of the Shares in violation of this Agreement shall be null and void. No
transfer of the Shares shall be made by the Corporation's registrar or transfer
agent upon the Corporation's stock transfer books or
19
records unless there has been compliance with the terms of this Agreement. The
Corporation shall issue stop transfer instructions to its registrar or transfer
agent to the effect that the certificate(s) evidencing the Shares may not be
transferred for a period of FORTY (40) CALENDAR DAYS after the Closing Date. The
Investor agrees that any disposition of the Shares in the U.S. shall be in
conformity with Regulation S pursuant to an opinion of counsel for the holder of
such Shares, that such Shares are exempt from registration under the 1933 Act
and such opinion shall be acceptable to the Corporation.
(v) The Investor is purchasing the Shares for its
own account and not on behalf of any U.S. persons; the sale has not been
pre-arranged with a purchaser in the United States; and all offers and resales
of the securities shall only be made in compliance with the provisions of
Regulation S.
c. RESTRICTIONS ON RESALES IN THE UNITED STATES. The Investor
understands and acknowledges that the Securities Act prohibits resales of
securities in the United States except pursuant to an effective registration
statement or an exemption from registration for which the Shares and the
Investor holding such Shares qualifies. The Investor understands and
acknowledges the requirements for qualifying for an exemption from registration
afforded by Section 4 of the Securities Act and that there can be no assurance
that the Investor will be able to qualify for such an exemption from
registration.
6. RESTRICTIVE LEGENDS. Each certificate evidencing the Shares which
the Investor may purchase hereunder and any other securities issued upon any
stock split, stock dividend, recapitalization, merger, consolidation or similar
event (unless no longer required in the opinion of the counsel for the
Corporation) shall be imprinted with legends substantially in the following
form:
THESE SECURITIES MAY NOT BE OFFERED OR SOLD TO ANY U.S. PERSON AS DEFINED BY
RULE 902(o) OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT OF 1933 FOR A
PERIOD OF 41 DAYS COMMENCING ON THE DATE THEY ARE ISSUED AND, THEREAFTER, ONLY
IF SUCH SECURITIES ARE REGISTERED UNDER THE 1933 ACT OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
The Corporation shall be entitled to enter stop transfer
notices on its transfer books with respect to the Shares during the Regulation S
restricted period.
7. RELIANCE. The Investor is aware that the Corporation is relying on
the accuracy of the above representations to establish compliance with Federal
and State securities laws. If any such warranties or representations are not
true and accurate in any respect as of the Closing, Investor shall so notify the
Corporation in writing immediately and shall be cause for rescission by the
Corporation at its sole election. The Investor shall indemnify the Corporation
and its affiliates, legal counsel and agents against all losses, claims, costs,
expenses and damages or liabilities, including reasonable attorneys' fees, which
such parties may suffer or incur caused or in connection with or arising out of,
directly or indirectly, from their reliance on such warranties and
representations.
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8. DUE DILIGENCE. The Investor, or its agents, have had a full
opportunity to conduct its due diligence of the Corporation, in connection with
this Agreement to its complete satisfaction. The Investor is familiar with the
Corporation, its financial condition, business and prospects, has been provided
with such information concerning the Corporation financial and other affairs as
the Investor deems necessary to enter into and perform this Agreement, has had
sufficient opportunity to ask questions and receive answers to verify the
accuracy of such information, and is not in any way relying upon any
information, representation or warranty (without implying that the supplying of
any such information or the making of any such representation or warranty has
occurred) that the Corporation or its officers, directors, employees, agents and
attorneys have provided, or have failed to provide, to the Investor in entering
into or performing this Agreement.
9. MISCELLANEOUS.
a. SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive the closing of the transactions
contemplated hereby.
b. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
c. ENTIRE AGREEMENT. This Agreement and the Exhibits and
Schedules attached hereto constitute the entire agreement and understanding
between the parties with respect to the subject matters herein, and supersede
and replace any prior agreements and understandings, whether oral or written
between and among them with respect to such matters. The provisions of this
Agreement may be waived, altered, amended or repealed, in whole or in part, only
upon the written consent of the Corporation and the Investor.
d. TITLES AND SUBTITLES. The titles of the Sections and
subsections of this Agreement are for the convenience of reference only and are
not to be considered in construing this Agreement.
e. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
f. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with laws of the State of New York, applicable to
contracts between New York residents entered into and to be performed entirely
within the State of New York.
g. VENUE. Any action, arbitration, or proceeding arising
directly or indirectly from this Agreement or any other instrument or security
referenced herein shall be litigated or arbitrated, as appropriate, in the New
York, State of New York.
h. AUTHORITY. If Investor is a corporation, partnership, trust
or estate: (i) the individual executing and delivering this Agreement on behalf
of the Investor has been duly
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authorized and is duly qualified to execute and deliver this Agreement on behalf
of Investor in connection with the purchase of the Shares and (ii) the signature
of such individual is binding upon Investor.
RISK FACTORS
INVESTMENT IN THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
THE COMPANY INTENDS TO USE THE NET PROCEEDS FROM THE SALE OF THE COMMON STOCK
BEING OFFERED TO FINANCE POTENTIAL BUSINESS ACQUISITIONS. THERE CAN BE NO
ASSURANCE HOWEVER THAT ANY SUCH ACQUISITION WILL TAKE PLACE. FURTHERMORE, THERE
CAN BE NO ASSURANCE THAT THE COMPANY WILL SUCCESSFULLY INTEGRATE THE OPERATIONS
OF THE ACQUIRED BUSINESS WITH THOSE OF THE COMPANY, OR THAT ALL OF THE BENEFITS
EXPECTED FROM SUCH INTEGRATION WILL BE REALIZED. ALTHOUGH THE COMPANY WILL
ENDEAVOR TO EVALUATE THE RISKS INHERENT IN A PARTICULAR ACQUISITION, THERE CAN
BE NO ASSURANCE THAT THE COMPANY WILL PROPERLY ASCERTAIN OR ASSESS SUCH
SIGNIFICANT RISK FACTORS.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
INVESTOR CELESTIAL VENTURES
CORPORATION
______________________________
(Name of Investor)
By:___________________________ By:____________________________
(Signature) Xxxxx Xxxxxxxxxxx, President
______________________________
(Print Name and Title)
SCHEDULE 1
Purchase Price Per Share: $3.00/share
Aggregate Purchase Price: $4,059,000
Total Number of Shares Offered: 1,353,000 shares
Purchase Date: October ___, 1997
Name of Registered Owner(s): ______________________________
Number of Shares: ______________________________
Address for Delivery of Shares: ______________________________
______________________________
______________________________
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SCHEDULE 2
DEFINITION OF "U.S. PERSON"
Reg. Section 230.902. As used in Regulation S, the following terms
shall have the meanings indicated:
(o) U.S. Person.
(1) "U.S. person" means:
(i) any natural person resident in the United
States;
(ii) any partnership or corporation organized or
incorporated under the laws of the United States;
(iii) any estate of which any executor or
administrator is a U.S. person;
(iv) any trust of which any trustee is a U.S.
person;
(v) any agency or branch of a foreign entity
located in the United States;
(vi) any 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;
(vii) any 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; and
(viii) any partnership or corporation if:
(A) organized or incorporated under the
laws of any foreign jurisdiction; and
(B) formed by a U.S. person principally for
the purpose of investing in securities not
registered under the Act, unless it is
organized or incorporated, and owned, by
accredited investors (as defined in Rule
501(a) under the Act (Section 230.501(a) of
this chapter)) who are not natural persons,
estates or trusts.
(2) Notwithstanding paragraph (o)(1) of this section, any
discretionary account or similar account (other than an estate
or trust) held for the benefit or account of a non-U.S. person
by a dealer or other professional fiduciary organized,
incorporated, or (if an individual) resident in the United
States shall not be deemed a "U.S. person."
(3) Notwithstanding paragraph (o)(1) of this section, any
estate of which any
professional fiduciary acting as executor or administrator is
a U.S. person shall not be deemed a U.S. person if:
(i) an executor or administrator of the estate who
is not a U.S. person has sole or shared investment
discretion with respect to the assets of the estate;
and
(ii) the estate is governed by foreign law.
(4) Notwithstanding paragraph (o)(1) of this section,
any trust of which any professional fiduciary acting as
trustee is a U.S. person shall not be deemed a U.S. person if
a trustee who is not a U.S. person has sole or shared
investment discretion with respect to the trust assets, and no
beneficiary of the trust (and no settlor if the trust is
revocable) is a U.S. person.
(5) Notwithstanding paragraph (o)(1) of this section, an
employee benefit plan established and administered in
accordance with the law of a country other than the United
States and customary practices and documentation of such
country shall not be deemed a U.S. person.
(6) Notwithstanding paragraph (o)(1) of this section, any
agency or branch of a U.S. person located outside the United
States shall not be deemed a "U.S. person" if:
(i) the agency or branch operates for valid business
reasons; and
(ii) the agency or branch is engaged in the business
of insurance or banking and is subject to substantive
insurance or banking regulation, respectively, in the
jurisdiction where located.
(7) The International Monetary Fund, the International Bank
for Reconstruction and Development, the Inter-American
Development Bank, the Asian Development Bank, the African
Development Bank, the United Nations, and their agencies,
affiliates and pension plans, and any other similar
international organizations, their agencies, affiliates and
pension plans shall not be deemed "U.S. persons."
SCHEDULE 3
DEFINITION OF "OFFSHORE TRANSACTION"
Reg. Section 230.902. As used in Regulation S, the following terms
shall have the meanings indicated:
(i) Offshore Transaction.
(1) An offer or sale of securities is made in an "offshore
transaction" if:
(i) the offer is not made to a person in the United
States; and
(ii) either:
(A) at the time the buy order is originated,
the buyer is outside the United States, or
the seller and any person acting on its
behalf reasonably believe that the buyer is
outside the United States; or
(B) for purposes of:
(1) Section 230.903, the transaction
is executed in, on or through a
physical trading floor of an
established foreign securities
exchange that is located outside the
United States; or
(2) Section 230.904, the transaction
is executed in, on or through the
facilities of a designated offshore
securities market described in
paragraph (a) of this section, and
neither the seller nor any person
acting on its behalf knows that the
transaction has been pre-arranged
with a buyer in the United States.
(2) Notwithstanding paragraph (i)(1) of this section, offers
and sales of securities specifically targeted at identifiable
groups of U.S. citizens abroad, such as members of the U.S.
armed forces serving overseas, shall not be deemed to be made
in "offshore transactions."
(3) Notwithstanding paragraph (i)(1) of this section, offers
and sales of securities to persons excluded from the
definition of "U.S. person" pursuant to paragraph (o)(7) of
this section or persons holding accounts excluded from the
definition of "U.S. person" pursuant to paragraph (o)(2) of
this section, solely in their capacities as holders of such
accounts, shall be deemed to be made in "offshore
transactions."
INVESTOR CONFIRMATION LETTER FOR A PRIVATE OFFERING PURSUANT
TO REGULATION "S"
Celestial Ventures Corporation
000 Xxxxx 00 Xxxxxxx 000
Xxxxxx, Xxx Xxxx 00000
October 30, 1997
Gentlemen,
This is to confirm to you that the _________ shares of Common Stock,
par value $.001 per share ("the Shares"), of Celestial Ventures Corporation (the
"Company") purchased by _____________________ ("Purchaser") on the date hereof
are being acquired for Purchaser's own account without a view to the
distribution thereof within the meaning of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder (collectively hereinafter
called the "Act").
Purchaser hereby represents and warrants to the Company that its
present and anticipated financial position permits it to purchase the Shares and
to hold the Shares for investment purposes. Purchaser hereby acknowledges
receipt of a Regulation S Common Stock Purchase Agreement dated August 4, 1997,
and represents and warrants that it has read the Regulation S Common Stock
Purchase Agreement and all exhibits thereto. The total size of the Regulation S
offering is 1,353,000 Shares.
Purchaser further acknowledges that:
(a) it is familiar with the requirements of Regulation S and
understands that the Shares have not been registered under the
Act, purchaser hereby represents and warrants to the Company that
it will make no offers or sales of the securities during the
restricted period which are not in accordance with Regulation S or
pursuant to an exemption from the registration requirements of the
Securities Act;
(b) prior to effecting any transfer (except pursuant to a registration
statement) of the Shares to any person, it will furnish the
Company with an opinion of counsel, which opinion shall be
satisfactory to the Company and counsel, that the proposed
transfer may be effected without registration under the Act or
registration or qualification under applicable state Blue Sky
laws;
(c) the certificate representing the Shares shall bear a legend
stating that the Shares evidenced by such certificates have not
been registered under the Act and may not be transferred (except
pursuant to a registration statement) except upon delivery to the
Company of an opinion of counsel, which opinion shall be
satisfactory to the Company and its counsel, that the proposed
transfer may be effected without registration under the Act or
registration or qualification under applicable state Blue Sky
laws; and
(d) the Company may enter, or may instruct its transfer agent to
enter, on its books an order stopping transfer of the Shares until
the conditions precedent to such transfer specified in paragraph
(b) above have been satisfied.
Very Truly Yours,
CELESTIAL VENTURES CORPORATION
by: ___________________________
Xxxxx Xxxxxxxxxxx, President
