Zhaoheng Hydropower Company SUBSCRIPTION AGREEMENT
Name of
Subscriber: ________________________
F/19,
Unit A, JingFengCheng Building
0000
Xxxxxxx Xxxx
Xxxxxxxx
XXX 000000
Ladies
and Gentlemen:
1. Subscription.
(a) The
undersigned, intending to be legally bound, hereby irrevocably subscribes for
and agrees to purchase from Zhaoheng Hydropower Company, a Nevada corporation
(the “Company”), for the
number of shares of Common Stock (the “Shares”) of the
Company indicated on the signature page hereof, for a purchase price equal to
$[__] per share. This subscription is made in accordance with and
subject to the terms and conditions described in this Subscription Agreement
(this “Agreement”) and in
the Private Placement Memorandum (the “Memorandum”), dated
August ____, 2008, and any attachments thereto.
The
Shares that are the subject of this Agreement are part of the offering (the
“Offering”) by
the Company of up to $5,689,853
of shares of Common Stock, as described in the Memorandum.
The
closing of the issuance of Shares pursuant to the Offering will occur as soon as
practicable after subscriptions for up to $5,689,853 Shares (the “Purchase
Price”) are received and accepted by the Company but not later than [__], 2008,
unless extended at the Company’s sole election. Pending the receipt
of subscriptions for the Purchase Price, the subscription proceeds will be held
in one or more special bank accounts.
THE
SECURITIES BEING OFFERED HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY APPLICABLE STATE OR OTHER REGULATORY
AUTHORITY PASSED UPON THE ACCURACY OR ADEQUACY OF THE MEMORANDUM OR ENDORSED THE
MERITS OF THE OFFERING. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
THE
SECURITIES ARE OFFERED PURSUANT TO EXEMPTIONS PROVIDED BY THE SECURITIES ACT,
CERTAIN STATE SECURITIES LAWS AND CERTAIN RULES AND REGULATIONS PROMULGATED
PURSUANT THERETO. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT (I) OUTSIDE OF THE UNITED STATES IN ACCORDANCE WITH
THE PROVISIONS OF REGULATION S (RULE 901 THROUGH 905, AND PRELIMINARY NOTES)
PROMULGATED UNDER THE SECURITIES ACT, (II) WITHIN THE UNITED STATES PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE
WITH ALL APPLICABLE STATE AND OTHER SECURITIES LAWS, OR (III) WITHIN THE UNITED
STATES PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND
IN COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES LAWS. HEDGING
TRANSACTIONS INVOLVING THE SHARES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH
THE SECURITIES ACT.
The
undersigned understands that the Shares are being offered and issued pursuant to
exemptions from the registration requirements of the Securities
Act. As such, the Shares are only being offered and sold to investors
who qualify as “accredited investors” (as described in Exhibit A) and/or
persons who are not “U.S. Persons” (as described in Exhibit B) and the
Company is relying on the representations made by the undersigned in this
Agreement that the undersigned qualifies as such. The Shares will be
“restricted securities” for purposes of the United States securities laws and
cannot be transferred except as permitted under these laws.
(b) The
undersigned is delivering (1) two executed copies of the signature page of and
Exhibit A to
this Agreement and/or two executed copies of the signature page of and Exhibit B to this
Agreement, as applicable, (2) two executed copies of the signature page to any
other agreement or other document required by the Company in connection herewith
and (3) the subscription payment in the full amount of the purchase price for
the Shares subscribed for, in the form of:
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(i)
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a
check payable to “Zhaoheng Hydropower Company” delivered to the address of
the Company listed in Section 8(b)(i) of this Agreement;
or
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(ii)
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a
wire transfer to “Zhaoheng Hydropower Company” in accordance with the
following instructions:
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Wire Transfer Instructions
to Zhaoheng Hydropower Company
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Bank:
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___________
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Account
Name:
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____________
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______________
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______
Account
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ABA
No.:
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Account
No.:
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Attention:
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Phone
No.:
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If this
subscription is accepted by the Company in whole or in part, then, as soon as
practicable, the Company will deliver to the undersigned the Shares subscribed
for by the undersigned, as well as a fully executed copy of this
Agreement.
In the
event of an oversubscription for Shares, or for any other reason determined by
the Company in its discretion, the Company may determine to accept a
subscription for only a portion of the Shares for which the undersigned has
subscribed pursuant to this Agreement. In such a case (i) the Company
will deliver the portion of the Shares that the Company has determined to sell
to the undersigned and retain the purchase price therefor and (ii) the balance
of the purchase price delivered to the Company by the undersigned will be repaid
to the undersigned without interest.
(c) The
undersigned may not withdraw this subscription or any amount paid pursuant
thereto except as otherwise provided below.
2. Conditions. It
is understood and agreed that this subscription is made subject to the following
terms and conditions:
(a) The
subscription is subject to all terms and conditions set forth in this Agreement,
including those set forth in Section 1 above, and the representations and
warranties of the Company and the undersigned contained in Section 3 and Section
4 hereof, respectively, shall be true and correct in all material respects as of
the acceptance hereof by the Company;
(b) In
addition, the undersigned acknowledges and agrees that this subscription and the
Shares are subject to the terms of any other agreement or other document
required by the Company in connection herewith, furnished to and agreed to and
accepted by the undersigned, which the undersigned is executing concurrently
herewith.
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3. Representations and
Warranties of the Company. The Company represents and warrants
to, and agrees with, the undersigned as follows, in each case as of the date
hereof and in all material respects as of the date of any acceptance of this
subscription by the Company, except for any changes resulting solely from the
Offering:
(a) The
Company is duly organized, validly existing and in good standing under the laws
of the state of its incorporation with full corporate power and authority to
own, lease, license and use its properties and assets and to carry out the
business in which it is engaged as described in the Memorandum, and is duly
qualified to do business and is in good standing as a foreign corporation in all
states in which it owns or leases property or in which the conduct of its
business requires it to be so qualified or licensed, except, in each case, where
the absence of any of the foregoing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(b) The
Company has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement and to issue and sell the
Shares. All necessary corporate proceedings of the Company have been
duly taken to authorize the execution, delivery, and performance of this
Agreement. This Agreement has been duly authorized by the Company
and, when executed and delivered by the Company, will constitute the legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms.
(c) The
Shares, when issued and paid for in accordance herewith, shall be binding
obligations of the Company enforceable in accordance with their
terms.
4. Representations, Warranties
and Covenants of the Subscriber. The undersigned hereby
represents and warrants to, and agrees with, the Company as follows, in each
case as of the date hereof and in all material respects as of the date of any
acceptance of this subscription by the Company:
(a) The
undersigned is (i) an “Accredited Investor” as that term is defined in Rule
501(a) of Regulation D promulgated under the Securities Act, and as specifically
indicated in Exhibit
A to this Agreement, and/or (ii) not a “U.S. Person” as that term is
defined in Rule 902(k) of Regulation S promulgated under the Securities Act, and
as specifically indicated in Exhibit B to this
Agreement.
(b) If
a natural person, the undersigned is (i) a bona fide resident of the state or
non-United States jurisdiction contained in the address set forth on the
signature page of this Agreement as the undersigned’s home address, (ii) at
least 21 years of age and (iii) legally competent to execute this Agreement, and
this Agreement has been duly executed and delivered by the undersigned and
constitutes the legal, valid and binding obligation of the undersigned
enforceable against the undersigned in accordance with its terms.
(c) If
an entity, the undersigned has its principal offices or principal place of
business in the state or non-United States jurisdiction contained in the address
set forth on the signature page of this Agreement, the individual signing on
behalf of the undersigned is duly authorized to execute this Agreement and this
Agreement has been duly executed and delivered by the undersigned and
constitutes the legal, valid and binding obligation of the undersigned
enforceable against the undersigned in accordance with its terms.
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(d) The
undersigned has received, read carefully and is familiar with this Agreement,
the Memorandum and any attachments thereto. The undersigned
understands and acknowledges that the information included in such documents is
not complete and, among other things, does not include certain information that
would be required in offering documents with respect to an offering of
securities registered under the United States securities laws or in disclosure
documents filed by public companies which are subject to the periodic reporting
requirements of the United States securities.
(e) The
undersigned, together with the undersigned’s professional advisor, is familiar
with the Company’s business, plans and financial condition, the terms of the
Offering and any other matters relating to the Offering; the undersigned has
received all materials which have been requested by the undersigned; the
undersigned has had a reasonable opportunity to ask questions of the Company and
its representatives; and the Company has answered to the satisfaction of the
undersigned all inquiries that the undersigned or the undersigned’s
representatives have put to it. The undersigned has had access to all
additional information that the undersigned has deemed necessary to verify the
accuracy of the information set forth in this Agreement and the Memorandum and
any other materials furnished herewith or therewith, and has taken all the steps
necessary to evaluate the merits and risks of an investment as proposed under
this Agreement and the Memorandum.
(f) The
undersigned acknowledges that this subscription is and shall be, subject to the
other terms and conditions hereof, irrevocable and this subscription and the
agreements contained herein shall survive the insolvency, death or disability of
the undersigned (as applicable), except that the undersigned shall have no
obligation hereunder in the event that its subscription is for any reason
rejected or the Offering is cancelled or terminated by the Company, which the
Company reserves the right to do in its sole and absolute discretion and for any
reason.
(g) The
undersigned or the undersigned’s purchaser representative has such knowledge and
experience in finance, securities, taxation, investments and other business
matters so as to be able to protect the interests of the undersigned in
connection with this transaction.
(h) The
undersigned understands the various risks of an investment in the Company as
proposed herein and can afford to bear such risks, including, without
limitation, the risks of losing the entire investment.
(i) The
undersigned has been advised by the Company and understands that none of the
Shares being offered have been registered under the Securities Act, that the
Shares are being offered and issued on the basis of the statutory exemption
provided by Section 4(2) of the Securities Act, Regulation D and Regulation S
promulgated thereunder, or both, relating to transactions by an issuer not
involving any public offering and under similar exemptions under certain state
securities laws; that this transaction has not been reviewed by, passed on or
submitted to any United States Federal or state agency or self-regulatory
organization where an exemption is being relied upon; and that the Company’s
reliance thereon is based in part upon the representations made by the
undersigned in this Agreement.
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(j) The
undersigned acknowledges that the undersigned has been informed by the Company
of, or is otherwise familiar with, the nature of the limitations imposed by the
Securities Act and the rules and regulations thereunder on the transfer of the
Shares acquired hereunder. In particular, the undersigned agrees that
no sale, assignment or transfer of any of the Shares acquired by the undersigned
shall be valid or effective, and the Company shall not be required to give any
effect to such a sale, assignment or transfer, unless the sale, assignment or
transfer is (i) registered under the Securities Act, it being understood that
the Shares are not currently registered for sale and that the Company has no
obligation or intention to so register the Shares; (ii) in accordance with all
the requirements and limitations of Rule 144 under the Securities Act, or (iii)
otherwise exempt from registration under the Securities Act, including
Regulation S promulgated thereunder. The undersigned further
understands that an opinion of counsel and other documents may be required to
transfer the Shares.
(k) The
undersigned acknowledges that the Shares to be acquired will be subject to a
stop transfer order, and any certificate or certificates evidencing the Shares
shall bear the following or a substantially similar legend and such other
legends as may be required by state blue sky laws:
“THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF EXCEPT (I) OUTSIDE OF THE UNITED STATES IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION S (RULE 901 THROUGH 905, AND PRELIMINARY NOTES)
PROMULGATED UNDER THE SECURITIES ACT, (II) WITHIN THE UNITED STATES PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE
WITH ALL APPLICABLE STATE AND OTHER SECURITIES LAWS, OR (III) WITHIN THE UNITED
STATES PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND
IN COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES LAWS. HEDGING
TRANSACTIONS INVOLVING THE SHARES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH
THE SECURITIES ACT.”
6
(l)
The undersigned will acquire the Shares for the
undersigned’s own account (or, if such individual is married, for the joint
account of the undersigned and the undersigned’s spouse either in joint tenancy,
tenancy by the entirety or tenancy in common) for investment and not with a view
to the sale or distribution thereof or the granting of any participation therein
in violation of the securities laws, and has no present intention of
distributing or selling to others any of such interest or granting any
participation therein in violation of the securities laws.
(m) No
representation, guarantee or warranty has been made to the undersigned by any
broker, the Company, any of the officers, directors, stockholders, partners,
employees or agents of any of them, or any other persons, whether expressly or
by implication, that:
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(i)
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the
Company or the undersigned will realize any amount or type of
consideration, profit or loss as a result of the Company’s activities or
the undersigned’s investment in the Company;
or
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(ii)
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the
past performance or experience of the management of the Company, or of any
other person, will in any way indicate the future results of an investment
in the Company or of the Company’s
activities.
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(n) No
oral or written representations have been made other than as stated in this
Agreement, and to the extent that certain information, which is not necessarily
complete, is included in the Memorandum and any attachments thereto, and no oral
or written information furnished to the undersigned or the undersigned’s
advisor(s) in connection with the Offering were in any way inconsistent with the
information stated in the Memorandum and any such attachments.
(q) The
undersigned is not subscribing for the Shares 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 or radio, or
presented at any seminar or meeting, or any solicitation of a subscription by a
person other than a representative of the Company with which the undersigned had
a pre-existing relationship in connection with investments in securities
generally.
(r) The
undersigned is not relying on the Company with respect to the tax and other
economic considerations of an investment.
(s) The
undersigned understands that the net proceeds from all subscriptions paid and
accepted pursuant to the Offering (after deduction for commissions, discounts
and expenses of the Offering) will be used in all material respects for the
purposes set forth in the Memorandum.
(t) Without
limiting any of the undersigned’s other representations and warranties
hereunder, the undersigned acknowledges that the undersigned has reviewed and is
aware of the risks described in the Memorandum.
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(u) The
undersigned acknowledges that the representations, warranties and agreements
made by the undersigned herein shall survive the execution and delivery of this
Agreement and the purchase of the Shares.
(v) The
undersigned has consulted the undersigned’s own financial, legal and tax
advisors with respect to the economic, legal and tax consequences of an
investment in the Shares and has not relied on the Memorandum or the Company,
its officers, directors or professional advisors for advice as to such
consequences.
(w) Except
as set forth on the signature page hereto, the undersigned has not engaged any
broker or other person or entity that is entitled to a commission, fee or other
remuneration as a result of the execution, delivery or performance of this
Agreement.
5. Indemnification. Each
party to this Agreement understands the meaning and legal consequences of the
representations and warranties contained in Sections 3 and 4 hereof, and agrees
to indemnify and hold harmless the other party and each officer, director,
partner, employee, agent and controlling person of each of them, past, present
or future, from and against any and all loss, damage or liability due to or
arising out of a breach of any such representation or warranty contained
herein.
6. Transferability. Neither
this Agreement, nor any interest of the undersigned herein, shall be assignable
or transferable by the undersigned in whole or in part except by operation of
law. Any attempt to assign or transfer this Agreement or any interest
therein other than by operation of law shall be void.
7. Confidentiality. The
undersigned acknowledges and agrees that all information, written and oral,
concerning the Company furnished from time to time to the undersigned,
including, without limitation, the Memorandum has been and is provided to the
undersigned on a confidential basis. The undersigned further
acknowledges and agrees that the undersigned may not disclose such information,
other than to the extent that (a) the information becomes publicly available
other than as a result of disclosure in violation of the provisions of this
Agreement or of the Memorandum or (b) such disclosure is required by law, to
anyone other than (i) the undersigned’s officers, directors, employees, legal
counsel, accountants or authorized agents or advisors who have a need to know
such information in connection with evaluating whether the undersigned should
enter into this Agreement and acquire the Shares, each of whom have agreed to
the provisions of this Section 7, and (ii) other stockholders of the
Company and their representatives who have similarly agreed to the provisions of
this Section 7. The provisions of this Section 7 shall survive the
purchase of the Shares and/or the termination of this Agreement.
8. Miscellaneous.
(a) This
Agreement, including the exhibits hereto, together with any other agreement or
other document required by the Company in connection with herewith and fully
executed and delivered by the Company, sets forth the entire understanding of
the parties with respect to the subject matter hereof, supersedes all existing
agreements among them concerning such subject matter, and may be modified only
by a written instrument duly executed by the party to be charged.
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(b) Except
as otherwise specifically provided herein, 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 by Federal Express,
Express Mail or similar overnight delivery or courier service or delivered (in
person or by telecopy, telex or similar telecommunications equipment) against
receipt to the party to whom it is to be given,
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(i)
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if
to the Company, to:
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F/19,
Unit A, JingFengCheng Building
0000
Xxxxxxx Xxxx
Xxxxxxxx
XXX 000000
Attention: Xxxx
Xxxx
Confirm:
011-86-755-82070966
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(ii)
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if
to the undersigned, at the address set forth on the signature page
hereof,
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or in any
case, to such other address as the party shall have furnished to the other party
in writing in accordance with the provisions of this Section
8(b). Any notice given by means permitted by this Section 8(b) shall
be deemed given at the time of receipt thereof at the address specified in this
Section 8(b).
(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
the successors and assigns of the Company, and the permitted successors,
assigns, heirs and personal representatives of the undersigned, not including,
however, any transferees of the Shares.
(d) The
headings in this Agreement are solely for convenience of reference and shall be
given no effect in the construction or interpretation of this
Agreement.
(e) This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
(f) This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to principles governing conflicts of
law that would defer to the substantive law of another
jurisdiction.
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(g) This
Agreement does not create, and shall not be construed as creating, any rights
enforceable by any person not a party to this Agreement (except as specifically
provided in this Agreement).
(h) EACH PARTY HERETO WAIVES TRIAL BY
JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY
BREACH OR ALLEGED BREACH HEREOF.
[Signature
pages follow]
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SIGNATURE
PAGE
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date this subscription has
been accepted by the Company as set forth below.
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Number
of Shares Subscribed For:
_______________
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By: ____________________
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___________________________
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Name: Xxxxxxxx
Xx
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Subscriber
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__________________________
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Title:
Chairman and CEO
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Identification
Number
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Address:
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Telephone:
Fax:
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If the
Shares will be held as joint tenants, tenants in common, or community property,
please complete the following:
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Print
name of spouse or other co-subscriber
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Signature
of spouse or other co-subscriber
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Print
manner in which Shares will be
held
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Social
Security Number or other Taxpayer Identification
Number:_____________________
If the
Shares have been purchased through a broker or other intermediary, please
identify such entity:
Please
complete Exhibit A and/or Exhibit B for each subscriber, as
applicable.
ACCEPTANCE
OF SUBSCRIPTION
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Name
of Subscriber
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ACCEPTED
BY:
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ZHAOHENG
HYDROPOWER
COMPANY
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By:
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Name:
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Xxxxxxxx
Xx
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Title:
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Chairman
and CEO
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Date:
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Accepted
for __________________ Number of Shares
EXHIBIT
A
ACCREDITED
INVESTOR STATUS
The
subscriber represents that such subscriber is an Accredited Investor on the
basis that such subscriber is (check one):
_____(i) A
bank as defined in Section 3(a)(2) of the Securities Act, or a 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; a broker
dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934;
an insurance company as defined in Section 2(13) of the Securities Act; an
investment company registered under the Investment Company Act of 1940 (the
“Investment Company Act”) or a business development company as defined in
Section 2(a)(48) of the Investment Company Act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958; a plan established and
maintained by a state, its political subdivisions or any agency or
instrumentality of a state or its political subdivisions for the benefit of its
employees, if such plan has total assets in excess of $5,000,000; an employee
benefit plan within the meaning of the Employee Retirement Income Security Act
of 1974 (“ERISA”), if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of ERISA, which is either a bank, savings and loan
association, insurance company, or registered investment advisor, or if the
employee benefit plan has total assets in excess of $5,000,000 or, if a
self-directed plan, with investment decisions made solely by persons that are
accredited investors.
_____(ii) A
private business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
_____(iii) 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 $5,000,000.
_____(iv) A
director or executive officer of the Company.
_____(v) A
natural person whose individual net worth, or joint net worth with that person’s
spouse, at the time of his or her purchase exceeds $1,000,000.
_____(vi) A
natural person who had an individual income in excess of $200,000 in each of the
two most recent 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) A
trust, with total assets in excess of $5,000,000, not formed for the specific
purpose of acquiring the securities offered, whose purchase is directed by a
sophisticated person as described in Rule 506(b)(2)(ii) (i.e., a person who has
such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of the prospective
investment).
_____(viii) An
entity in which all of the equity owners are accredited
investors. (If this alternative is checked, the undersigned must
identify each equity owner and provide statements signed by each demonstrating
how each is qualified as an accredited investor. Further, the
undersigned represents that it has made such investigation as is reasonably
necessary in order to verify the accuracy of this alternative.)
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Confirmed:
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Subscriber
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By:
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Name:
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Xxxxxxxx
Xx
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Title:
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Chairman
and CEO
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EXHIBIT
B
NON-U.S.
PERSON STATUS
The
subscriber represents that such subscriber is not a “U.S. Person” on the basis
that such subscriber is (check all that apply):
_____(i) Not
a “U.S. Person” as defined in Rule 902 of Regulation S (“Regulation S”) under
the Securities Act.
_____(ii) A
broker/dealer, investment advisor or other person that has discretionary
authority to engage in securities transactions for others in the ordinary course
of business and hereby certifies that: (a) all purchases of securities will
be for the benefit or account of another individual or entity (the “Purchaser”)
as to which such subscriber has authority to make, and does make, the statements
contained herein, and not for such subscriber’s own account, and (b) the
Purchaser is not a U.S. person, as
defined in Rule 902 of Regulation S under the Securities Act, and is not an
estate or trust.
_____(iii) Aware
that the sale of Shares is being made wholly or partially in reliance on
Regulation S under the Securities Act and certifies that (1) the undersigned is
not an “affiliate” of the Company (as that term is defined in Rule 144 under the
Securities Act), (2) the offer of such securities was not made to a person in
the United States and at the time the subscription was originated, the
undersigned was outside the United States, and no transaction has been
prearranged with a buyer in the United States, (3) neither the Company nor any
affiliate nor any person acting on any of their behalf has engaged in any
“directed selling efforts” in the United States in connection with such offer
and sale of such securities, (4) such transaction is bona fide and not for the
purpose of avoiding the restrictions under the Securities Act, (5) it is not
intended that such securities will be replaced with fungible unrestricted
securities, and (6) such transaction is not a transaction, or part of a series
of transactions which, although in technical compliance with Regulation S, is
part of a plan or scheme to evade the registration provisions of the
Act. Terms used herein and not defined have the meanings given to
them by Regulation S.
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Confirmed:
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Subscriber
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By:
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Name:
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Xxxxxxxx
Xx
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Title:
|
Chairman
and CEO
|
