Exhibit 2.31
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00 Xxxx Xxxxxx Xxxxxx Xxxxxx, Xxx Xxxxxx 00000 |
The undersigned (the
“Subscriber”) hereby acknowledges that the Corporation is proceeding with a
private placement of units (each, a “Unit”), with each Unit consisting of (i)
ten ordinary shares par value NIS 1.00 of the Corporation (a “Share”) and (ii)
three Share Purchase Warrants (“Warrant”); each full Warrant will entitle the
holder to purchase one (1) additional Share at a price of $0.65 per Share if exercised on
or before the date that is five years after the date of the issuance of the Warrant. The
Subscriber hereby tenders to the Corporation this subscription offer which, upon
acceptance by the Corporation, will constitute an agreement of the Subscriber to subscribe
for, take up, purchase and pay for and, on the part of the Corporation, to issue and sell
to the Subscriber the number of Units set out below on the terms and subject to the
conditions set out in this Agreement.
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Number of Units: |
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| Total Purchase Price at $5.4 per Unit: |
$ |
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DATED this ________ day of
__________________, 20___.
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___________________________________
(Name of Subscriber - please print) |
___________________________________
(Subscriber's Address) |
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| by: ___________________________________ |
___________________________________ |
| Official Capacity or Title - please print) |
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___________________________________ |
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(Telephone Number) |
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___________________________________
Authorized Signature |
___________________________________
(Facsimile Number) |
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___________________________________
(Please print name of individual whose |
___________________________________
(E-mail Address) |
| signature appears above if different |
| than the name of the Subscriber printed |
| above). |
If Registration or delivery
instructions are different from the address listed above, please advise the Issuer at the
time of subscription.
This subscription is accepted by the
Corporation this ______ day of ___________________, 20__.
___________________________________
Authorized
Signatory |
1.1. In this
Agreement, unless the context otherwise requires:
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“1933
Act” means the United States Securities Act of 1933, as amended; |
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“Accredited
Investor” has the meaning set forth in Appendix I hereto; |
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"Closing" means the day on which the transaction hereof is consummated pursuant to the terms of
Section 5 below; |
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“Commission” means the United States Securities and Exchange Commission; |
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“Exemption” means
the exemptions from the prospectus requirements of the 1933 Act; |
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“Parties” or “ Party ” means the Subscriber, the Corporation or both, as the context
requires; |
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“Private
Placement” means the offering of the Units by the Issuer; |
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“Regulation S” means Regulation S promulgated under the 1933 Act; |
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"Regulatory Authorities" means the Commission and the securities regulatory authorities
in an international jurisdiction; |
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“Shares” means
ordinary shares par value NIS 1.00 each of the Corporation; |
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“Subscriber” has
the meaning ascribed to it on the cover page; |
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“Subscriber’s
Units” means those Units which the Subscriber has agreed to purchase under this
Agreement; |
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“Subscription
Proceeds” means the total gross proceeds from the sale of Units under the Private
Placement; |
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“United
States” means the United States of America, its territories and possessions, any
state of the United States and the District of Columbia; |
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“U.S. Person” has the meaning ascribed to it in Regulation S.
Without limiting the foregoing, but for greater clarity in this
Agreement, a U.S. Person includes, subject to the exclusions set
forth in Regulation S, (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 or trust of
which any executor, administrator or trustee is a U.S. Person, (iv)
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 (v) any
partnership or corporation organized or incorporated under the laws
of any non-U.S. jurisdiction which is formed by a U.S. Person
principally for the purpose of investing in securities not registered
under the 1933 Act, unless it is organized or incorporated, and
owned, by Accredited Investors who are not natural persons, estates
or trusts. |
1.2 This
Agreement is to be read with all changes in gender or number as required by the context.
1.3 The
headings in this Agreement are for convenience of reference only and do not
affect the interpretation of this Agreement.
1.4 Unless
otherwise indicated, all dollar amounts referred to in this Agreement are in lawful
currency of the United States of America.
1.5 This
Agreement is governed by, subject to and interpreted in accordance with the laws
prevailing in the State of Israel. The competent courts in Tel Aviv shall have sole and
exclusive jurisdiction on and dispute arising out or in connection with this Agreement.
| 2. |
REPRESENTATIONS,
WARRANTIES, COVENANTS AND ACKNOWLEDGEMENTS OF THE SUBSCRIBER |
2.1 The
Subscriber acknowledges, represents, warrants and covenants to and with the Corporation
that, as at the date given above and at the Closing:
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(a) |
no
prospectus has been filed by the Corporation with any of the Commissions in
connection with the issuance of the Units, such issuance is exempted from
the prospectus requirements of the 1933 Act and that: |
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(i) |
the
Subscriber is restricted from using most of the civil remedies available
under the 1933 Act; |
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(ii) |
the
Subscriber may not receive information that would otherwise be required to
be provided to it under the 1933 Act; and |
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(iii) |
the
Corporation is relieved from certain obligations that would otherwise apply
under the 193 Act; |
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(b) |
the
Subscriber certifies that it is resident in the jurisdiction(s) set out on
the first page of this Agreement; |
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(c) |
the
Subscriber is purchasing the Subscriber’s Units as principal for its
own account and not for the benefit of any other person, and is purchasing
the Subscriber’s Units for investment only and not with a view to the
resale or distribution of all or any of the Subscriber’s Units; |
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(d) |
the
Subscriber acknowledges that: |
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(i) |
no
securities commission or similar regulatory authority has reviewed or passed
on the merits of the Units; |
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(ii) |
there
is no government or other insurance covering the Units; |
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(iii) |
there
are risks associated with the purchase of the Units; |
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(iv) |
there
are restrictions on the Subscriber’s ability to resell the Units and
it is the responsibility of the Subscriber to find out what those
restrictions are and to comply with them before selling the Units; and |
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(v) |
the
Corporation has advised the Subscriber that the Corporation is relying on an
exemption to provide the Subscriber with a prospectus and to sell
securities through a person registered to sell securities under the 1933
Act and, as a consequence of acquiring Units pursuant to an Exemption,
certain protections, rights and remedies provided by the 1933 Act,
including statutory rights of rescission or damages, will not be available
to the Subscriber; |
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(e) |
the
Subscriber is an Accredited Investor, by virtue of the fact that the
Subscriber falls within one or more of the sub-paragraphs of the
definition of Accredited Investor set out in Appendix I, and the
Subscriber has checked the sub-paragraph(s) applicable to the Subscriber); |
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(f) |
no
person has made to the Subscriber any written or oral representations: |
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(i) |
that
any person will resell or repurchase any of the Units; |
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(ii) |
that
any person will refund the purchase price of any of the Units; or |
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(iii) |
as
to the future price or value of any of the Units; |
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(g) |
the
Subscriber will not become a “control person” by virtue of the
purchase of the Subscriber’s Shares, and does not intend to act in
concert with any other person to form a control group of the Issuer; |
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(h) |
the
Subscriber has no knowledge of a “material fact” or “material
change” in the affairs of the Corporation that has not been generally
disclosed to the public, save knowledge disclosed to it in connection with
this particular transaction; |
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(i) |
the
offer made by this subscription is irrevocable by the Subscriber and
requires acceptance by the Corporation; |
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(j) |
the
Corporation will have the right to accept this subscription offer in whole
or in part and the acceptance of this subscription offer will be
conditional upon the sale of the Subscriber’s Units to the Subscriber
being exempt from the prospectus and registration requirements under
applicable relevant securities legislation; |
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(k) |
the
Subscriber has the legal capacity and competence to enter into and execute
this Agreement and to take all actions required pursuant hereto and, if an
individual is of full age of majority, and if the Subscriber is a
corporation it is duly incorporated and validly subsisting under the laws
of its jurisdiction of incorporation, and all necessary approvals by its
directors, shareholders and others have been given to authorize the
execution of this Agreement on behalf of the Subscriber; |
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(l) |
the
entering into of this Agreement and the transactions contemplated hereby
will not result in the violation of any of the terms and provisions of any
law applicable to, or the constating documents of, the Subscriber or of
any agreement, written or oral, to which the Subscriber may be a party or
by which it is or may be bound; |
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(m) |
this
Agreement has been duly executed and delivered by the Subscriber and
constitutes a legal, valid and binding obligation of the Subscriber
enforceable against the Subscriber; |
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(n) |
the
Subscriber has been advised to consult its own legal advisors with respect
to the applicable hold periods imposed in respect of the Shares by
applicable securities legislation and regulatory policies and confirms
that no representations by the Corporation have been made respecting the
hold periods applicable to the Units; |
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(o) |
the
Subscriber is aware of the risks and other characteristics of the Units and
of the fact that the Subscriber may not be able to resell the Units
purchased by it except in accordance with the applicable securities
legislation and regulatory policies and that the Units may be subject to
resale restrictions and may bear a legend to this effect; |
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(p) |
if
required by applicable securities legislation, policy or order or by any
securities commission, stock exchange or other regulatory authority, the
Subscriber will execute, deliver, file and otherwise assist the
Corporation in filing, such reports, undertakings and other documents with
respect to the issue of the Corporation as may be required; |
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(q) |
the
Subscriber acknowledges that upon completion of the Private Placement, the
Corporation may pay certain commissions or finder’s fees with respect
to the Subscriber’s purchase of Units; |
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(r) |
the
Subscriber has not purchased the Units as a result of any form of general
solicitation or general advertising, including advertisements, articles,
notices or other communication published in any newspaper, magazine or
similar media or broadcast over radio, television or internet or any
seminar or meeting whose attendees have been invited by general
solicitation or general advertising; |
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(s) |
the
Subscriber has such knowledge in financial and business affairs as to be
capable of evaluating the merits and risks of its investment and is able
to bear the economic risk of loss of its investment; |
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(t) |
the
Subscriber agrees that the Corporation may be required by law or otherwise
to disclose to regulatory authorities the identity of the Subscriber and,
if applicable, the beneficial purchaser for whom the Subscriber may be
acting; and |
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(u) |
the
Subscriber agrees that the above representations, warranties, covenants and
acknowledgements in this subsection will be true and correct both as of
the execution of this subscription and as of the day of Closing. |
2.2 The
foregoing representations, warranties, covenants and acknowledgements are made by the
Subscriber with the intent that they be relied upon by the Corporation in determining its
suitability as a purchaser of Shares, and the Subscriber hereby agrees to indemnify the
Corporation against all losses, claims, costs, expenses and damages or liabilities which
any of them may suffer or incur as a result of reliance thereon. The Subscriber
undertakes to notify the Corporation immediately of any change in any representation,
warranty or other information relating to the Subscriber set forth herein which takes
place prior to the Closing.
| 3. |
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE CORPORATION |
3.1 The
Corporation represents, warrants and covenants that, as of the date given above and at
the Closing:
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(a) |
the
Corporation is a valid and subsisting corporation incorporated under the
laws of the State of Israel; |
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(b) |
the Corporation is, where required, duly registered and licensed to carry on
business in the jurisdictions in which it carries on business or owns property
where required under the laws of that jurisdiction; |
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(c) |
the Corporation has sufficient non-issued shares in its authorized share capital
to issue the Units, including the Shares that are issuable upon the proper
exercise of the Warrants, and upon their issuance the Shares comprising the
Units will be duly and validly issued as fully paid and non-assessable, and when
issued in accordance with the proper exercise of the Warrants, including the
payment , the Shares issuable thereunder shall be duly and validly issued as
fully paid and non-assessable; |
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(d) |
the Corporation has complied and will comply fully with the requirements of all
applicable corporate and securities laws and administrative policies and
directions in relation to the issue of its securities and in all matters
relating to the Private Placement; |
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(e) |
the issue and sale of the Units 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 or by which it is bound; |
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(f) |
except as disclosed in the Corporations filings with the Commission, the
Corporation is not a party to any actions, suits or proceedings which could
materially affect its business or financial condition, and except for the events
already disclosed by the Corporation, to the best of the Corporation’s
knowledge no such actions, suits or proceedings are contemplated or have been
threatened; |
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(g) |
this Agreement has been or will be by the Closing, duly authorized by all
necessary corporate action on the part of the Corporation, and the Issuer has or
will have by the Closing full corporate power and authority to undertake the
Private Placement; and |
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(h) |
no order ceasing or suspending trading in securities of the Corporation nor
prohibiting the sale of such securities has been issued to and is outstanding
against the Corporation or its directors, officers or promoters or against any
other companies that have common directors, officers or promoters and no
investigations or proceedings for such purposes are pending or threatened. |
3.2 The
representations and warranties contained in this section will survive the Closing for a
period of one year.
3.3 Upon
acceptance of this subscription, the Corporation agrees and undertakes that it shall make
it best efforts to file a registration statement, within six months, with the Commission
for the registration for sale of the Shares comprising the Units and the Shares that may
be issued upon the exercise of the Warrants, and shall use its best efforts to keep such
registration statement continuously effective under the Securities Act until all
securities covered by such registration statement have been sold, or may be sold without
volume restrictions pursuant to Rule 144(k) of the SEC. The Corporation agrees to provide
to subscribers the same registration rights provided to Fortissimo mutatis mutandis, as
provided in the Registration Rights Agreement dated as of September 12, 2005, a copy of
which is on file at the SEC and available upon request from the Corporation.
Notwithstanding
anything to the contrary, if: (i) a Registration Statement is not filed on or prior to
July 1, 2007, (ii) a Registration Statement filed or required to be filed hereunder is not
declared effective by the Commission within 120 days of its date of filing, (iii) after
its date of effectiveness, a Registration Statement ceases for any reason to remain
continuously effective as to all securities for which it is required to be effective, or
the subscribers are otherwise not permitted to utilize the Prospectus therein to resell
such Shares for more than 20 consecutive calendar days or more than an aggregate of 30
calendar days during any 12-month period (which need not be consecutive calendar days)
(any such failure or breach being referred to as an “Event”, and for
purposes of clause (i) or (ii) the date on which such Event occurs, or for purposes of
(iii) the date on which such 20 or 30 calendar day period, as applicable, is exceeded
being referred to as “Event Date”), then in addition to any other rights
the subscribers may have, on each such Event Date and on each monthly anniversary of each
such Event Date (if the applicable Event shall not have been cured by such date) until the
applicable Event is cured, the subscribers may require the Corporation to pay to each
subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to
1.0% of the aggregate purchase price paid by such subscriber pursuant to this Subscription
Agreement for any Shares then held by such subscriber, subject to an overall limit of up
to 24 months of partial liquidated damages. If the Corporation fails to pay any such
partial liquidated damages in full within seven days after the date of notice thereof, the
Corporation will pay interest thereon at a rate of 8% per annum to the subscriber,
accruing daily from the date such partial liquidated damages are due until such amounts,
plus all such interest thereon, are paid in full. The partial liquidated damages pursuant
to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior
to the cure of an Event.
| 4. |
WITHDRAWAL
OF SUBSCRIPTION |
4.1 The
Subscriber waives the right to withdraw this subscription and to terminate its
obligations hereunder at any time before the Closing.
5.1 The
Closing will take place on such date or dates to be determined by the Issuer, and if a
Closing does not occur on or before January 31, 2007, the subscription proceeds will be
returned to the Subscriber without interest or deduction.
5.2 Upon
execution of this Agreement, the Subscriber will deliver to the Corporation:
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(a) |
this
subscription form, duly executed; |
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(b) |
at
Closing Subscriber will deliver to the Corporation a certified check, wire
transfer or bank draft for the total price of the Subscriber’s Units
made payable to the Corporation; and |
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(c) |
the
completed applicable Appendices. |
5.3 At
Closing, the Corporation will deliver (a) a copy of the Corporation’s board of
directors resolution certified by an authorized officer of the Corporation, approving the
issuance of the securities in accordance with the sale of the Units hereunder; (b)
irrevocable instructions to the its transfer agent to issue as soon as is reasonably
practicable to the subscribers share certificates for the Subscriber’s Shares and
(c) to the Subscriber the certificate(s) representing the Warrants registered in the name
of the Subscriber or its nominee.
The Subscriber understands and
acknowledges that the Units will be subject to resale restrictions under United States
securities laws, the terms of which may be endorsed on the certificates representing the
Units, and the Subscriber agrees to comply with such resale restrictions. The Subscriber
also acknowledges that it has been advised to consult with its own independent legal
advisor with respect to the applicable resale restrictions and the Subscriber is solely
responsible for complying with such restrictions and the Corporation is not responsible
for ensuring compliance by the Subscriber with the applicable resale restrictions.
| 7. |
USE
OF PERSONAL INFORMATION |
7.1 The
Subscriber hereby acknowledges and consents to: (i) the disclosure by the Subscriber and
the Corporation of Personal Information concerning the Subscriber to a securities
commission or other regulatory authority (a “Securities Commission”), or to a
stock exchange and any of its affiliates, authorized agents, subsidiaries and divisions,
(collectively referred to as “an Exchange”); and (ii) the collection, use and
disclosure of Personal Information by an Exchange for the following purposes (or as
otherwise identified by such Exchange, from time to time):
| (a) |
to
conduct background checks; |
| (b) |
to
verify the Personal Information that has been provided about the Subscriber; |
| (c) |
to
consider the suitability of the Subscriber as a holder of securities of the Corporation; |
| (d) |
to
consider the eligibility of the Corporation to list on the Exchange; |
| (e) |
to
provide disclosure to market participants as the security holdings of the Corporation's
shareholders, and their involvement with any other reporting issuers,
issuers subject to a cease trade order or bankruptcy, and information
respecting penalties, sanctions or personal bankruptcies, and possible
conflicts of interest with the Issuer; |
| (f) |
to
detect and prevent fraud; |
| (g) |
to
conduct enforcement proceedings; and |
| (h) |
to
perform other investigations as required by and to ensure compliance with all
applicable rules, policies, rulings and regulations of an Exchange,
securities legislation and other legal and regulatory requirements governing
the conduct and protection of the public markets. |
7.2 Herein,
“Personal Information” includes any information about the Subscriber required
to be disclosed to a Securities Commission or an Exchange, whether pursuant to a
Securities Commission or Exchange form or a request made by a Securities Commission or an
Exchange.
7.3 The
Subscriber acknowledges and consents to: (i) the fact that the Corporation is collecting
his Personal Information for the purpose of completing this Agreement; (ii) the Issuer
retaining such Personal Information for as long as permitted or required by law or
business practices; (iii) the fact that the Corporation may be required by securities
laws, the rules and policies of any stock exchange to provide regulatory authorities with
any Personal Information provided by the Subscriber in this Agreement.
8.1 The
Subscriber hereby authorizes the Corporation to correct any formal errors in, or complete
any minor information missing from this Agreement and any Appendix that has been executed
by the Subscriber and delivered to the Corporation, but the Corporation may not correct
any errors in substance without the consent of the subscriber. The Subscriber consents to
the filing of such documents and any other documents as may be required to be filed with
any securities regulatory authority in connection with the Private Placement.
8.2 This
Agreement, which includes any interest granted or right arising under this Agreement, may
not be assigned or transferred.
8.3 Except
as expressly provided in this Agreement and in the agreements, instruments and other
documents contemplated or provided for herein, this Agreement contains the entire
agreement between the Parties with respect to the Units and there are no other terms,
conditions, representations or warranties whether expressed, implied, oral or written, by
statute, by common law, by the Corporation, or by anyone else.
8.4 The
Parties may amend this Agreement only in writing.
8.5 This
Agreement enures to the benefit of and is binding upon the Parties and, as the case may
be, their respective heirs, executors, administrators and, successors.
8.6 A Party
will give all notices or other written communications to the other Party concerning this
Agreement by hand or by registered mail addressed to such other Party’s respective
address which is noted on the cover page of this Agreement.
8.7 This
Agreement may be executed in counterparts, each of which when delivered will be deemed to
be an original and all of which together will constitute one and the same document and
the Corporation will be entitled to rely on delivery by facsimile machine of an executed
copy of this subscription, and acceptance by the Corporation of such facsimile copy will
be equally effective to create a valid and binding agreement between the Subscriber and
the Issuer as if the Corporation had accepted the subscription originally executed by the
Subscriber.
8.8.
Without limiting the generality of the parties’ confidentiality obligations
and subject to any duty imposed by any applicable law, it is agreed immediately
subsequent to the Closing the Corporation will announce the transaction hereof
by issuing a press releases and making such other filings as required by
applicable law.
REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK
APPENDIX I
U.S. ACCREDITED
INVESTOR QUESTIONNAIRE
The Subscriber understands and agrees
that the Units (which for the purposes of this Questionnaire include the Shares, the
Warrants, and the Shares issuable upon the proper exercise of the Warrants) have not been
and will not be registered under the United States Securities Act of 1933, as
amended (the “1933 Act”), or applicable state securities laws, and the Units are
being offered and sold by the Issuer to the Subscriber in reliance upon Rule 506 of
Regulation D under the 1933 Act. Terms used but not defined in this Appendix have the
meanings ascribed thereto in the Subscription Agreement of which this Appendix forms a
part.
The Subscriber represents, warrants
and covenants (which representations, warranties and covenants shall survive the Closing)
to the Issuer, (and acknowledges that the Issuer is relying thereon) that:
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(a) |
it
has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits, and risks of the investment and it is
able to bear the economic risk of loss of the investment; |
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(b) |
it
is purchasing the Units for its own account or for the account of one or more
persons (a “Beneficial Purchaser”) for investment purposes only
and not with a view to resale or distribution and, in particular, neither
it nor any Beneficial Purchaser for whose account it is purchasing the
Shares has any intention to distribute either directly or indirectly any
of the Units in the United States; provided, however, that the Units may
be offered, sold or otherwise disposed of pursuant to registration thereof
pursuant to the 1933 Act and any applicable state securities laws or under
an exemption from such registration requirements; |
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(c) |
it,
and if applicable, each Beneficial Purchaser for whose account it is
purchasing the Units is a U.S. Accredited Investor that satisfies one or
more of the categories of U.S. Accredited Investor indicated below (the
Subscriber must initial “SUB” for the Subscriber, and
“BP” for each Beneficial Purchaser, if any, on the appropriate
line(s)): |
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_______ |
Category 1. |
A bank, as defined in Section 3(a)(2) of the 1933 Act, whether acting in its individual or fiduciary capacity; |
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_______ |
Category 2. |
A savings and loan association or other institution as defined in Section 3(a)(5)(A) of the 1933 Act, whether acting in its individual or fiduciary capacity; |
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_______ |
Category 3. |
A broker or dealer registered pursuant to Section 15 of the United States Securities Exchange Act of 1934; |
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_______ |
Category 4. |
An insurance company as defined in Section 2(13) of the 1933 Act; |
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_______ |
Category 5. |
An investment company registered under the United States Investment Company Act of 1940; |
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_______ |
Category 6. |
A business development company as defined in Section 2(a)(48) of the United States Investment Company Act of 1940; |
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_______ |
Category 7. |
A small business investment company licensed by the U.S. Small Business Administration under Section 301 (c) or (d) of the United States Small Business Investment Act of 1958; |
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_______ |
Category 8. |
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, with total assets in excess of U.S. $5,000,000; |
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_______ |
Category 9. |
An employee benefit plan within the meaning of the United States Employee Retirement Income Security Act of 1974 in which 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 an employee benefit plan with total assets in excess of U.S. $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons who are accredited investors; |
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_______ |
Category 10. |
A private business development company as defined in Section 202(a)(22) of the United States Investment Advisers Act of 1940; |
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_______ |
Category 11. |
An organization described in Section 501(c)(3) of the United States Internal Revenue Code, a corporation, a Massachusetts or similar business trust, or a partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of U.S. $5,000,000; |
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_______ |
Category 12. |
Any director or executive officer of the Issuer; |
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_______ |
Category 13. |
A natural person whose individual net worth, or joint net worth with that person's spouse, at the date hereof exceeds U.S. $1,000,000; |
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Category 14. |
A natural person who had an individual income in excess of U.S. $200,000 in each of the two most recent years or joint income with that person's spouse in excess of U.S. $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; |
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_______ |
Category 15. |
A trust, with total assets in excess of U.S. $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) under the 1933 Act; or |
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_______ |
Category 16. |
Any entity in which all of the equity owners meet the requirements of at least one of the above categories; |
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(d) |
it
has not purchased the Units as a result of any form of general solicitation
or general advertising, including advertisements, articles, notices
or other communications published in any newspaper, magazine or
similar media or broadcast over radio, or television, or any seminar
or meeting whose attendees have been invited by general solicitation
or general advertising; |
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(e) |
it
agrees that if it decides to offer, sell or otherwise transfer the Units, it
will not offer, sell or otherwise transfer any of such Units directly
or indirectly, unless: |
| |
(i) |
the
transfer is to the Issuer; |
| |
(ii) |
the
transfer is made outside the United States in a transaction meeting the
requirements of Rule 904 of Regulation S under the 1933 Act and in
compliance with applicable local laws and regulations; |
| |
(iii) |
the
transfer is made in compliance with the exemption from the registration
requirements under the 1933 Act provided by Rule 144 thereunder, if
available, and in accordance with applicable state securities laws;
or |
| |
(iv) |
the
Units are transferred in a transaction that does not require registration
under the 1933 Act or any applicable state laws and regulations
governing the offer and sale of securities; and |
| |
it
has prior to such sale furnished to the Issuer an opinion of counsel or other evidence of
exemption, in either case reasonably satisfactory to the Issuer; |
| |
(f) |
it
understands that upon the issuance thereof, and until such time as the same
is no longer required under the applicable requirements of the 1933 Act or
applicable U.S. state laws and regulations, the certificates representing
the Units will bear a legend in substantially the following form: |
| |
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”). THESE SECURITIES MAY
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE
THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT, (C) IN
COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE 1933 ACT
PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933
ACT OR ANY APPLICABLE STATE LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE
COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY
SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD
DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA. IF THE
SECURITIES ARE BEING SOLD AT ANY TIME THE COMPANY IS A “FOREIGN ISSUER” AS
DEFINED IN RULE 902 UNDER THE 1933 ACT, A NEW CERTIFICATE, BEARING NO LEGEND, THE DELIVERY
OF WHICH WILL CONSTITUTE “GOOD DELIVERY” MAY BE OBTAINED FROM THE COMPANY’S
TRANSFER AGENT UPON DELIVERY OF THIS CERTIFICATE AND A DULY EXECUTED DECLARATION, IN FORM
SATISFACTORY TO THE COMPANY AND THE COMPANY’S TRANSFER AGENT TO THE EFFECT THAT THE
SALE OF THE SECURITIES IS BEING MADE IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
1933 ACT.” |
| |
provided,
that if Units are being sold under clause (B) above, at a time when the Issuer is a
“foreign issuer” as defined in Rule 902 under the 1933 Act, the legend set forth
above may be removed by providing a declaration in such form as the Issuer may from time
to time prescribe to the Issuer’s transfer agent, to the effect that the sale of the
securities is being made in compliance with Rule 904 of Regulation S under the 1933 Act; |
| |
(g) |
if any of the Units are being sold pursuant to Rule 144 of the 1933 Act, the
legend may be removed by delivery to the Issuer’s transfer agent of an
opinion satisfactory to the Issuer to the effect that the legend is no longer
required under applicable requirements of the 1933 Act or state securities laws; |
| |
(h) |
it
has had the opportunity to ask questions of and receive answers from the
Issuer regarding the investment, and has received all the information
regarding the Issuer that it has requested; |
| |
(i) |
it
understands that the Issuer or its registrar and transfer agent may not
record any transfer of Units without first being notified that such
transfer is exempt from or not subject to the registration requirements of
the 1933 Act and applicable state securities laws; |
| |
(j) |
it
consents to the Issuer making a notation on its records or giving instruction
to the registrar and transfer agent of the Issuer in order to implement
the restrictions on transfer set forth and described herein; |
| |
(k) |
it
understands and acknowledges that the Issuer may not successfully file with
the United States Securities and Exchange Commission or with any state
securities administrator a registration statement in respect of the resale
of the Shares in the United States; |
| |
(l) |
it
understands and agrees that there may be material tax consequences to the
Subscriber of an acquisition, disposition or exercise of any of the Units;
the Issuer gives no opinion and makes no representation with respect to
the tax consequences to the Subscriber under United States, state, local
or foreign tax law of the Subscriber’s acquisition or disposition of
such Shares; in particular, no determination has been made whether the
Issuer will be a “passive foreign investment company” (“PFIC”)
within the meaning of Section 1291 of the United States Internal Revenue
Code; |
| |
(m) |
it
acknowledges that the representations, warranties and covenants contained in
this Appendix are made by it with the intent that they may be relied upon
by the Issuer in determining its eligibility or the eligibility of others
on whose behalf it is contracting thereunder to purchase Units. It agrees
that by accepting Units it shall be representing and warranting that the
representations and warranties above are true as at the Closing with the
same force and effect as if they had been made by it at the Closing and
that they shall survive the purchase by it of Units s and shall continue
in full force and effect notwithstanding any subsequent disposition by it
of such securities. |
The Subscriber undertakes to notify
the Issuer immediately of any change in any representation, warranty or other information
relating to the Subscriber or any Beneficial Purchaser set forth herein which takes place
prior to the Closing.
IN WITNESS WHEREOF, the undersigned
has executed this Questionnaire as of the ____ day of
,
20__.
|
|
| If a Corporation, Partnership or Other Entity: |
If an Individual: |
| |
| _____________________________________________ |
_____________________________________________ |
| Name of Entity |
Signature |
| |
| _____________________________________________ |
_____________________________________________ |
| Type of Entity |
Print or Type Name |
| |
| _____________________________________________ |
|
| Signature of Person Signing |
| |
| _____________________________________________ |
| Print or Type Name and Title of Person Signing |
