EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT") is made and
entered into as of the 25th day of January, 2005, between Xxxxxxxxx Mobile
Fueling, Inc., a Florida corporation (the "COMPANY") and the investors listed on
Exhibit A (each, a "PURCHASER" and collectively, the "PURCHASERS" and, together
with the Company, the "PARTIES") and is delivered and executed in connection
with the Company's sale of Units (as defined below).
1. DESCRIPTION OF UNITS.
(a) This Agreement sets forth the terms and conditions under which each
Purchaser will purchase such number of Units as set forth opposite such
Purchaser's name on Exhibit A (the "TRANSACTION"). The purchase price for each
Unit is $50,000. Each Unit shall consist of: (i) a $50,000 aggregate principal
amount 10% promissory note due January 24, 2010 in the form attached as Exhibit
B (the "NOTE"), collateralized by a first priority security interest on the
Company's collateral described in the next sentence (the "COLLATERAL") and (ii)
a warrant to purchase 7,100 shares of the Company's common stock, $.01 par value
("COMMON STOCK") at an exercise price to be determined as of the Closing Date,
in the form attached as Exhibit C (the "WARRANT"). The Collateral consists of
(i) the vehicles and equipment owned by SMF Services, Inc., a Delaware
corporation and wholly owned subsidiary of the Company ("SMF SERVICES"), that
are listed on Exhibit D, which list may be updated at Closing based on the final
terms of the Acquisition (as defined below), including future additions, parts,
accessories, attachments, substitutions, repairs, related intangibles,
improvements and replacements to or of any listed vehicle or equipment, (ii) any
proceeds from the sale, assignment, or other transfer of any of the foregoing,
including, without limitation, proceeds of insurance, and (iii) certain other
intangible assets of SMF Services.
(b) The offer and sale of Units by the Company is limited to "accredited
investors" as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act of 1933, as amended.
(c) Except with respect to the Collateral, each Purchaser acknowledges
that the payment of principal and interest on the Note will be subordinated (i)
to the rights and interests of Congress Financial Corporation (Florida)
("CONGRESS") pursuant to and in connection with, and the payment of all existing
and future amounts owed by the Company to Congress under, the Loan and Security
Agreement by and between Congress and the Company dated September 26, 2002, as
amended (the "LOAN AGREEMENT") and (ii) to any other credit facility into which
the Company may subsequently enter to replace the Loan Agreement requiring that
the lender rank in a senior position to other debt of the Company (the
"REPLACEMENT FACILITY" and, together with the Loan Agreement, the "PERMITTED
DEBT"). The Purchasers and the Company acknowledge that the Note will be
expressly subject to the terms and conditions of that certain Subordination
Agreement effective as of January 21, 2003, by and among Congress, the Company
and certain other parties as if Purchaser were a subordinating party thereto.
Upon request, each Purchaser will execute and deliver such other documents and
instruments as Congress or any current or subsequent commercial lender may
reasonably request to acknowledge and effect the foregoing subordination.
2. OFFER.
(a) Each Purchaser, by signing this Agreement, (i) agrees to abide by, and
be subject to, all applicable terms and conditions of the Note and Warrant and
(ii) offers to purchase such number of Units, and for the aggregate purchase
price, as set forth opposite such Purchaser's name on Exhibit A (each such
purchase price, an "INVESTMENT AMOUNT" and collectively the "INVESTMENT
AMOUNTS").
(b) The Company shall have the right, in its sole and absolute discretion,
to reject or accept each Purchaser's offer to purchase Units pursuant to this
Agreement. If the Company accepts Purchaser's offer, the Company shall execute
this Agreement and return a copy of the Agreement, and issue an original Note
and an original Warrant, to Purchaser. If the Company rejects Purchaser's offer,
the Company shall return to Purchaser this Agreement, together with any payment
made by Purchaser to the Company, without interest or deduction.
3. INITIAL CLOSING. The initial purchase and sale of the Units shall take
place at such time(s) and place(s) as the Company and the Purchasers mutually
agree upon, orally or in writing (the "INITIAL CLOSING."). Purchasers' tender of
the Investment Amounts shall not, without more, constitute an agreement by the
Purchasers to close. The closing(s) of the purchase and sale of the Units
pursuant to Section 4 below shall take place at such time(s) and place(s) as the
Company and the Purchasers participating therein shall mutually agree, orally or
in writing (each, a "SUBSEQUENT CLOSING" ) (the Initial Closing and any
Subsequent Closing are individually and collectively referred to herein as a
"CLOSING" and each such date of Closing is referred to as a "CLOSING DATE").
4. SUBSEQUENT CLOSINGS. At any time before January 15, 2005, the Company may
sell additional Units in Subsequent Closings and the Purchasers in such
Subsequent Closings shall, upon execution of one or more counterparts of this
Agreement, become parties to this Agreement without any further act or agreement
of the Purchasers in the Initial Closing or any previous Subsequent Closing;
provided, however, that the aggregate Investment Amounts from all Closings shall
not exceed $6,100,000.
5. RECEIPT OF DOCUMENTS. Purchaser acknowledges receipt of a copy of: (a)
this Agreement; (b) the Note; (c) the Warrant; (d) the Indenture by and between
the Company and indenture trustee for the holders of the Notes (the "TRUSTEE"),
dated of even date herewith (the "INDENTURE"); (e) the Company's Annual Report
on Form 10-K for the year ended June 30, 2004 (the "10-K"); (f) the Company's
Quarterly Report on Form 10-Q for the quarter ended September 30, 2004 (the
"10-Q"); (g) the Security Agreement by and between the Company and Trustee,
dated of even date herewith (the "SECURITY AGREEMENT"); (h) the Company's proxy
statement dated October 28, 2004 (the "PROXY"); and (i) the Company's
Confidential Private Placement Memorandum dated November 22, 2004 (the "PPM")
(collectively, the "DOCUMENTS"). The 10-K, 10-Q and Proxy were furnished as
Exhibits D, E, and F, respectively, to the PPM.
2
6. USE OF PROCEEDS; NO REFUNDS. The Investment Amounts shall be used by the
Company: (a) to pay the cash portion of the purchase price for the Company's
purchase of the business (the "ACQUISITION") of Shank C&E Investments, LLC, a
Delaware limited liability company ("SHANK") to be paid at the closing of the
Acquisition; and to the extent there are any remaining Investment Amounts, (b)
for general working capital purposes. Upon execution and delivery of this
Agreement by the Company to each Purchaser, the Investment Amounts shall not,
under any circumstances, be refunded to such Purchaser.
7. ADDITIONAL DEBT. The Company agrees that, after the Initial Closing, it
shall not issue any new or replacement debt, except for Permitted Debt, which
ranks senior in any respect to the Notes, without the prior written approval of
the holders of at least sixty-six and 2/3 percent (662/3%) of the principal
amount of the Notes. Nothing herein shall be deemed to impair or prevent the
Company from incurring additional debt after the Closings, provided, however,
that all such future debt must be expressly subordinated to the Permitted Debt.
8. CONDITIONS PRECEDENT. Notwithstanding anything to the contrary contained
in this Agreement, the obligations of the Company to close the Transaction shall
be contingent upon the following:
(a) the Minimum Offering Amount (as defined in the PPM) of $5,000,000
being met by January 15, 2005;
(b) each investor completing, to his or her satisfaction, all business,
legal, and accounting due diligence regarding the Company and the offering;
(c) consent of Congress and the holders of a majority of the principal
amount outstanding of the Company's 2003 10% Senior Secured Notes to the
offering and the issuance of the Notes and the Warrants; and
(d) execution of a definitive agreement between the Company and Shank
setting forth the terms and conditions of the Acquisition.
9. COMPANY'S RIGHT TO CANCEL. The Company, in its sole discretion, may cancel
this Agreement with respect to any or all Purchasers at any time prior to the
Closing Date by delivery of written notice of cancellation to the affected
Purchaser(s) and return of the Investment Amounts to all affected Purchasers.
10. BOUND BY INDENTURE AND SECURITY AGREEMENT. By delivering a counterpart
signature page to this Agreement, Purchaser agrees that it shall be bound by the
terms and conditions of the Indenture and the Security Agreement.
11. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Each Purchaser represents and
warrants to the Company as follows:
(a) Purchaser, either alone or through Purchaser's representative, as that
term is defined under Rule 501(h) of Regulation D under the Securities Act (the
"PURCHASER'S REPRESENTATIVE"), if any, has had an opportunity to ask questions
of, and receive answers from, duly designated representatives of the Company
concerning the terms and conditions of this Agreement and has been afforded an
opportunity to examine such documents and other information which Purchaser or
Purchaser's Representative, if any, has requested for the purpose of answering
any question Purchaser or Purchaser's Representative, if any, may have
concerning the business and affairs of the Company.
3
(b) Purchaser's principal residence or domicile is located in the State
set forth opposite such Purchaser's name on Exhibit A. Purchaser has received
and reviewed this Agreement and the Documents and acknowledges the Company made
available to Purchaser and Purchaser's Representative, if any, at a reasonable
time prior to the execution of this Agreement, the opportunity to ask questions
and receive answers concerning the business and affairs of the Company and the
terms and conditions of the sale of the Units, the Notes, the Warrants and the
shares of Common Stock which may be obtained by exercise of the Warrants
(collectively, the "SECURITIES") as contemplated by this Agreement and to obtain
any additional information (which the Company possesses or can acquire without
unreasonable effort or expense) as may be necessary to verify the accuracy of
information furnished to Purchaser or Purchaser's Representative, if any.
Purchaser (i) is able to bear the loss of its entire investment without any
material adverse effect on its economic stability, and (ii) has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment to be made by Purchaser
pursuant to this Agreement.
(c) Purchaser and Purchaser's Representative, if any, understand that the
Securities are being offered and sold only to "accredited investors" (as that
term is defined under Rule 501(a) of Regulation D), and Purchaser represents
that Purchaser is an accredited investor. Purchaser and Purchaser's
Representative, if any understand the Company is relying on Purchaser with
respect to the accuracy of this representation. Purchaser has completed and
returned a copy of Schedule A and Purchaser represents that the statements made
therein are complete and accurate.
(d) Purchaser and Purchaser's Representative, if any, understand that this
Agreement may not comply with the information requirements of Regulation D for
offers and sales to non-accredited investors (see Regulation D, Rule 502(b)),
and, consequently, Purchaser understands the significance of its representation
to the Company that Purchaser is an accredited investor. Purchaser and
Purchaser's Representative, if any, acknowledge that they were encouraged by the
Company to request all additional information which might be material or
important in order for Purchaser to make an informed investment decision with
respect to the Company.
(e) The Securities are being purchased for investment purposes only for
such Purchaser's own account and not with the view to, or for resale in
connection with, any distribution or public offering. Purchaser and Purchaser's
Representative, if any, understand that the Securities have not been registered
under the Securities Act or any state securities laws by reason of their
contemplated issuance in transactions exempt from the registration requirements
of the Securities Act and applicable state securities laws, and that the
reliance of the Company and others upon these exemptions is predicated in part
upon the representation by Purchaser. Purchaser and Purchaser's Representative,
if any, understands that the Securities may not be transferred or resold without
the prior approval of the Company, which approval shall be granted so long as
the proposed transfer or resale does not violate state or federal securities
laws or this Agreement.
4
(f) Purchaser and Purchaser's Representative, if any, have carefully read
this Agreement, the Documents and the other information furnished to Purchaser
by the Company in connection with this Agreement.
(g) Purchaser was not solicited to purchase the Securities by any means of
general solicitation, including, but not limited to, the following: (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media, or broadcast over television or radio; or
(ii) any meeting where attendees were invited by any general solicitation or
general advertising.
(h) Purchaser and Purchaser's Representative, if any, are aware that the
placement agent for the Transaction, Philadelphia Brokerage Corporation, will
receive (i) a cash commission equal to four percent (4%) of the aggregate
Investment Amounts and (ii) Warrants to purchase 23,000 shares of Common Stock
for each $1,000,000 raised, as compensation for its efforts in advising the
Company with respect to the Transaction, as described in the Engagement Letter
dated October 15, 2004 between the Company and Philadelphia Brokerage
Corporation, as amended.
(i) Purchaser and Purchaser's Representative, if any, are aware that the
Securities, including the shares of Common Stock issuable upon exercise of the
Warrant ("the WARRANT STOCK"), are and will be, when issued, "restricted
securities," as that term is defined in Rule 144 of the rules and regulations
promulgated under the Securities Act. Purchaser and Purchaser's Representative,
if any, are aware of the applicable limitations on the resale of the Stock. Rule
144 only permits sales of "restricted securities" held for at least one year and
in transactions which otherwise comply with the requirements of such Rule.
Purchaser and Purchaser's Representative, if any, acknowledge that, if Rule 144
is available to Purchaser for the sale of the Warrant Stock, Purchaser may make
only routine sales of the Warrant Stock in limited amounts in accordance with
the terms and conditions of Rule 144. Purchaser and Purchaser's Representative,
if any, are aware that while there is a trading market for the Common Stock on
the Nasdaq Small Cap Market, the Common Stock is thinly traded and, while the
Company currently meets the public information requirements of Rule 144, there
is no guarantee that it will do so at any time in the future.
(j) Purchaser and Purchaser's Representative, if any, understand that, in
the absence of an effective registration statement covering the shares at the
time of issuance, any and all certificates representing the Warrant Stock shall
bear a legend substantially as follows, which legend Purchaser has read and
understands:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR THE SECURITIES LAWS OF
ANY STATE AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE ACT. SUCH SHARES MAY NOT BE OFFERED FOR SALE, SOLD
OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER, THE AVAILABILITY
OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF COUNSEL TO THE
ISSUER.
5
(k) Purchaser and Purchaser's Representative, if any, acknowledge and
warrant that, in making this investment decision, they have made their own
independent assessment of the merits and risks of an investment in the
Securities based on their examination and evaluation of the Company, its
business, operations, financial condition, future prospects and the skills and
qualifications of its officers, directors and employees. Purchaser and
Purchaser's Representative, if any, have consulted Purchaser's own attorney,
business or tax advisors for legal, business or tax advice concerning an
investment in the Securities and have not relied on the Company.
(l) PURCHASER AND PURCHASER'S REPRESENTATIVE, IF ANY, REPRESENT AND
WARRANT THAT, EXCEPT AS SET FORTH IN THIS AGREEMENT AND IN THE DOCUMENTS, NO
REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE TO THE PURCHASER OR PURCHASER'S
REPRESENTATIVE, IF ANY, BY THE COMPANY OR ANY AGENT, EMPLOYEE, REPRESENTATIVE OR
AFFILIATE OF THE COMPANY AND THAT, IN ENTERING INTO THIS TRANSACTION AND
SUBSCRIBING FOR UNITS, NEITHER THE PURCHASER NOR THE PURCHASER'S REPRESENTATIVE,
IF ANY, IS RELYING ON ANY INFORMATION OTHER THAN THAT CONTAINED IN THIS
AGREEMENT, THE DOCUMENTS, AND OTHER WRITTEN INFORMATION OBTAINED FROM THE
COMPANY IN THE COURSE OF THE INDEPENDENT INVESTIGATION BY PURCHASER OR
PURCHASER'S REPRESENTATIVE, IF ANY.
(m) Purchaser and Purchaser's Representative, if any, acknowledge that at
such time, if ever, as the Warrant Stock is registered with the Securities and
Exchange Commission, sales of such securities will still be subject to federal
and state securities laws which may require, among other things, Purchaser's
Warrant Stock to be sold through a registered broker-dealer or in reliance upon
an exemption from state registration.
(n) Purchaser and Purchaser's Representative, if any, represent and
warrant that Purchaser can bear the economic risk of loss of Purchaser's entire
investment in the Company. Purchaser and Purchaser's Representative, if any,
understand that an investment in the Company involves substantial risks,
including, without limitation, those described in the Documents, including but
not limited to the PPM, the 10-K and the 10-Q.
12. INDEMNIFICATION BY PURCHASER. Purchaser agrees that it shall indemnify and
hold harmless the Company and its officers, directors, employees, agents and
professional advisors from and against any and all loss, damage, liability, or
expense, including costs and reasonable attorneys' fees, that any one or more of
the foregoing may incur by reason of, or in connection with, any (i)
misrepresentation, inaccurate statement or material omission or (ii) breach of
any warranties or failure to fulfill any covenants, agreements or obligations,
by Purchaser or Purchaser's Representative, if any, in this Agreement.
13. AUTHORIZATION. Purchaser authorizes the Company and its officers,
employees and agents to investigate Purchaser's personal and business background
including, without limitation, communication with any employer, former employer,
business associate, government agency, bank or other credit reference. Purchaser
authorizes any person, organization or entity that may have any knowledge or
information concerning Purchaser's personal or business background to provide
such information to the Company as the Company may request.
6
14. NO BROKERS OR FINDERS. Other than the compensation to be paid to
Philadelphia Brokerage Corporation, no person, firm or corporation has or will
have, as a result of any act or omission by such Purchaser, any right, interest
or valid claim against Purchaser or the Company for any commission, fee or other
compensation as a finder or broker, or in any similar capacity, in connection
with the transactions contemplated by this Agreement.
15. MISCELLANEOUS.
(a) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida. The Parties submit to the exclusive
jurisdiction of the courts located in Broward County, Florida, with respect to
any dispute arising under this Agreement and the transactions contemplated
hereby.
(b) This Agreement, the Note, the Warrant, the Indenture and the Security
Agreement contain the entire agreement between the Company and Purchaser with
regard to the subject matter hereof and may not be modified or waived except in
a writing signed by both the Company and all parties to each such agreement;
provided, however, that Trustee shall not consent to any such amendment without
the prior written consent of the holders of at least sixty-six and 2/3 percent
(662/3%) of the principal amount of the Notes.
(c) The headings of this Agreement are for convenience and reference only,
and shall not limit or otherwise affect the interpretation of any term or
provision hereof.
(d) This Agreement and the rights, powers, and duties set forth herein
shall, except as otherwise expressly provided, be binding upon and inure to the
benefit of, the heirs, executors, administrators, legal representatives,
successors, and assigns of the Parties.
(e) This Agreement and the rights and obligations hereunder shall not be
assignable or transferable by the Purchaser or the Company without the prior
written consent of the other Parties, except (i) in the case of the Company, by
operation of law in connection with a merger, consolidation or sale of
substantially all of its assets or (ii) in the case of a Purchaser, (1) to any
Affiliates (as defined below) of the Purchaser or (2) to partners, members,
beneficiaries or other equity interest holders of the Purchaser; provided, that
in each case referred to in (1) and (2) above, the third party transferee would
have been eligible to be an original purchaser of Units pursuant to this
Agreement and executes a counterpart signature page hereto becoming a
"Purchaser" hereunder, subject to all of the rights and obligations of this
Agreement. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the Parties and their
respective successors and assigns. "PERSON" means an individual, corporation,
partnership, association, trust or other entity or organization, including a
government or political subdivision or agency or instrumentality thereof.
"AFFILIATE" means, with respect to any Person, any other Person who, directly or
indirectly, owns or controls, is under common ownership or control with, or is
owned or controlled by, such Person.
7
(f) This Agreement is for the sole benefit of the Parties and their
permitted assigns and nothing expressed or implied in this Agreement shall give
or be construed to give to any Person, other than the Parties and such assigns,
any legal or equitable rights hereunder.
(g) If any legal action or any arbitration or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach,
default, or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
(h) This Agreement shall be construed in accordance with its intent and
without regard to any presumption or any other rule requiring construction
against the party causing the same to be drafted.
(i) If any provision of this Agreement, or any portion of any provision,
shall be deemed invalid or unenforceable for any reason whatsoever, such
invalidity or unenforceability shall not affect the enforceability and validity
of the remaining provisions.
(j) This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which taken together shall
constitute one agreement. Signatures to this Agreement may be transmitted by
facsimile and such transmission shall be deemed to be an original.
[Signature page follows.]
8
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective duly authorized officers or persons as of the date
first set forth above.
XXXXXXXXX MOBILE FUELING, INC.
BY: ___________________________________
Xxxxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
PURCHASERS
__________________________________________
PRINT NAME: ______________________________
ADDRESS: ______________________________
______________________________
Phone: ______________________________
Fax: ______________________________
SSN/EIN: ______________________________
__________________________________________
PRINT NAME: ______________________________
ADDRESS: ______________________________
______________________________
Phone: ______________________________
Fax: ______________________________
SSN/EIN: ______________________________
9
PURCHASERS (CONTINUED)
__________________________________________
PRINT NAME: ______________________________
ADDRESS: ______________________________
______________________________
Phone: ______________________________
Fax: ______________________________
SSN/EIN: ______________________________
__________________________________________
PRINT NAME: ______________________________
ADDRESS: ______________________________
______________________________
Phone: ______________________________
Fax: ______________________________
SSN/EIN: ______________________________
__________________________________________
PRINT NAME: ______________________________
ADDRESS: ______________________________
______________________________
Phone: ______________________________
Fax: ______________________________
SSN/EIN: ______________________________
10
PURCHASERS (CONTINUED)
__________________________________________
PRINT NAME: ______________________________
ADDRESS: ______________________________
______________________________
Phone: ______________________________
Fax: ______________________________
SSN/EIN: ______________________________
__________________________________________
PRINT NAME: ______________________________
ADDRESS: ______________________________
______________________________
Phone: ______________________________
Fax: ______________________________
SSN/EIN: ______________________________
__________________________________________
PRINT NAME: ______________________________
ADDRESS: ______________________________
______________________________
Phone: ______________________________
Fax: ______________________________
SSN/EIN: ______________________________
11
SCHEDULE A
ACCREDITED INVESTOR REPRESENTATION
As provided by Rule 501(a) of Regulation D, my representation that I am or
represent an accredited investor is based upon one of the following grounds that
I am or represent (please check one):
|_| A private business development company as defined in Section
202(a)(22) of the Investment Advisors Act of 1940;
|_| An 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
securities offered, with total assets in excess of Five Million
Dollars ($5,000,000);
|_| A director or executive officer of the Company;
|_| A natural person whose individual net worth, or joint net worth with
that person's spouse, exceeds One Million Dollars ($1,000,000);
|_| A natural person who has an individual income in excess of Two Hundred
Thousand Dollars ($200,000) in each of the two (2) most recent years
and has a reasonable expectation of reaching the same income level in
the current year;
|_| A natural person who has a joint income with that person's spouse in
excess of Three Hundred Thousand Dollars ($300,000) in each of the two
(2) most recent years and has a reasonable expectation of reaching the
same income level in the current year;
|_| A trust, with total assets in excess of Five Million Dollars
($5,000,000), not formed for the specific purpose of acquiring the
securities offered, whose purchase is directed by a sophisticated
person as defined by Rule 506(b)(2)(ii) of the Securities Act; or
|_| An entity in which all of the equity owners are accredited investors.
INDIVIDUAL: ENTITY:
__________________________________ _________________________________
Print Name: ______________________ By: ________________________
Date: ______________________ Name: ________________________
Title: ________________________
Schedule A to Securities Purchase Agreement
Page 1 of 3
MANNER IN WHICH TITLE TO BE HELD
(Please check one)
|_| Individual Ownership
|_| Community Property
|_| Joint Tenant with Right of Survivorship (both parties must sign)
|_| Partnership
|_| Tenants in Common
|_| Company
|_| Trust
|_| Other
Page 2 of 3 Schedule A to Securities Purchase Agreement
AFFILIATION WITH A U. S. REGISTERED BROKER-DEALER:
Are you associated with an NASD member firm? (Please check one)
YES _______ NO _______
(1) The NASD defines a "person associated with a member" or
"associated person of a member" as being every sole proprietor, general or
limited partner, officer, director or branch manager of any 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 with the NASD. Thus, "person associated with a member" or
"associated person of a member" includes a sole proprietor, general or limited
partner, officer, director or branch manager of an organization of any kind
(whether a corporation, partnership or other business entity) which itself is
either a "member" or a "person associated with a member" or "associated person
of a member." In addition, an organization of any kind is a "person associated
with a member" or "associated person of a member" if its sole proprietor or any
one of its general or limited partners, officers, directors or branch managers
is a "member," "person associated with a member" or "associated person of a
member."
(2) The NASD defines a "member" as being any individual,
partnership, corporation or other legal entity that is a broker or dealer
admitted to membership in the NASD.
IF SUBSCRIBER IS A REGISTERED REPRESENTATIVE WITH AN NASD MEMBER FIRM, THE
FOLLOWING ACKNOWLEDGMENT MUST BE SIGNED BY THE APPROPRIATE PARTY BEFORE
SUBSCRIBER'S OFFER TO PURCHASE SHARES WILL BE ACCEPTED BY THE COMPANY:
The undersigned NASD member firm acknowledges receipt of the notice
required by Rule 3050 of the NASD Conduct Rules or any successor rules or
regulations.
DATE: _______________________________ ______________________________________
NAME OF NASD MEMBER FIRM
BY: _______________________________
NAME: _______________________________
TITLE: _______________________________
Page 3 of 3 Schedule A to Securities Purchase Agreement
