Exhibit 4.10
Purchaser:___________________
SUBSCRIPTION AGREEMENT
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TRINITY MEDICAL GROUP USA, INC.
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Trinity Medical Group USA, Inc.
30021 Xxxxx, Xxxxx 000
Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Gentlemen:
1. Subscription. The undersigned hereby applies to purchase from Trinity
Medical Group USA, Inc., a Florida corporation (the "Company"), a promissory
note issued by the Company to the order of the undersigned for the principal
amount of TWENTY THOUSAND DOLLARS ($20,000), substantially in the form attached
hereto as Attachment A (the "Promissory Note"). This subscription is
irrevocable, but may be rejected by the Company in its sole discretion. In the
event that the undersigned's subscription documents are returned to it, the
undersigned understands that all of its obligations hereunder shall terminate.
2. Representations and Warranties. The undersigned acknowledges,
represents, warrants and agrees as follows:
(a) Authorization. The decision to invest and the execution and
delivery of this agreement by the undersigned, the performance by the
undersigned of its obligations hereunder and the consummation by the undersigned
of the transactions contemplated hereby have been duly authorized and no other
proceedings on the part of the undersigned is necessary. The person executing
this agreement on behalf of the undersigned has all right, power and authority
to execute and deliver this agreement on behalf of the undersigned. This
agreement has been duly executed and delivered by the undersigned and, assuming
the due authorization, execution and delivery hereof by the Company, will
constitute the legal, valid and binding obligations of the undersigned,
enforceable against the undersigned in accordance with its terms, except as the
same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally and
the availability of equitable remedies.
(b) Accredited Investor. The undersigned is aware of what constitutes
an Accredited Investor as that term is defined under Regulation D promulgated
under the Securities Act of 1933, as amended (the "Act"), and under the laws, if
any, of each state governing the undersigned, and the undersigned is an
Accredited Investor for purposes of Regulation D and the laws, if any, of the
state governing the undersigned. The undersigned is able to bear the economic
risks of this investment and, consequently, without limiting the generality of
the foregoing, is able to hold the Subscription Shares and the Warrant Shares
(the Subscription Shares, the Warrant and the Warrant Shares being collectively
referred to as the "Securities") for
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an indefinite period of time and has a sufficient net worth to sustain a loss of
its entire investment in the Company in the event such loss should occur.
In addition, the undersigned meets at least one of the following
criteria (please check where applicable):
(A) A natural person and has, or with his or her spouse jointly has,
and the undersigned and his or her spouse will have at the time
of purchase of the Shares, a net worth (i.e., total assets in
excess of total liabilities) in excess of $1,000,000;
(B) A natural person and has had an individual annual income
(exclusive of his or her spouse's income, regardless of whether
this is a joint investment with such spouse) in excess of
$200,000 in each of the two most recent years or joint income
with his or her spouse in excess of $300,000 in each of those
years, and the undersigned has a reasonable expectation of
reaching the same income level in the current year. For this
purpose, a person's income is the amount of his individual
adjusted gross income (as reported on a federal income tax
return), increased by the following amounts: (a) any deduction
for depletion (Section 611 et seq. of the Internal Revenue Code
of 1986, as -- --- amended (the "Code")), (b) any deduction for a
portion of long-term capital gains (Section 1202 of the Code),
(c) any exclusion for interest on tax exempt municipal
obligations (Section 103 of the Code); and (c) any losses of a
partnership or limited liability company allocated to the
individual (as reported on Schedule E of Form 1040);
(C) A bank as defined in Section 3(a)(2) of the Act or any savings
and loan association or other institution as defined in Section
3(a)(5)(A) of the Act, whether acting in an individual or
fiduciary capacity;
(D) A broker or dealer registered pursuant to the Securities Exchange
Act of 1934;
(E) An insurance company as defined in Section 2(13) of the Act;
(F) An investment company registered under the Investment Company Act
of 1940 (the "1940 Act");
(G) A business development company as defined in Section 2(a)(48) of
the 1940 Act;
(H) 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;
(I) An employee benefit plan within the meaning of Title I of the
Employment Retirement Income Security Act of 1974 ("ERISA"), and
either (i) the investment decision with respect to this
subscription is to be made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which is either a bank, savings and loan
association, an insurance company, or a registered investment
adviser, or (ii) the employee benefit plan has total assets in
excess of $5,000,000 or (iii) if a self-directed plan, investment
decisions are made solely by Accredited Investors;
(J) A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940;
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(K) A corporation, Massachusetts or similar business trust, a
partnership or an organization described in Section 501(c)(3) of
the Internal Revenue Code, not formed for the specific purpose of
acquiring the Shares, with total assets in excess of $5,000,000;
(L) A trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the Securities, which
acquisition is directed by a sophisticated person as described in
Rule 506(b)(2)(ii) of Regulation D promulgated under the Act; or
(M) An entity in which all of the equity owners qualify as
"Accredited Investors."
(c) Evaluation of Risks. The undersigned has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of, and bearing the economic risks entailed by, an investment
in the Company and of protecting its interests in connection with this
transaction. The undersigned recognizes that its investment in the Company
involves a high degree of risk and that the Company is dependent upon this
private placement to continue its operations.
(d) High Degree of Risk. The undersigned acknowledges that an
investment in the Securities is a speculative investment and involves a high
degree of risk, and that the Company makes no assurances whatever concerning the
present or prospective value of the Shares. The undersigned understands that the
price of the Securities has been arbitrarily determined by the Company and bears
no relationship to its assets, earnings, book value or other accepted criteria
of value.
(e) Due Diligence. The undersigned has received a copy of such
documents relating to the Company as requested by the undersigned (collectively,
the "Documents"), has carefully reviewed such Documents, has had the opportunity
to obtain any additional information necessary to verify the accuracy of the
information contained in such Documents and has been given the opportunity to
meet with representatives of the Company and to have them answer any questions
and provide any additional information regarding the terms and conditions of
this particular investment deemed relevant by the undersigned, and all such
questions have been answered and requested information provided to the
undersigned's full satisfaction. In making its decision to purchase the
Securities, the undersigned has relied solely upon its review of the Documents
referred to above, this agreement and independent investigations made by it or
its representatives.
(f) Independent Counsel. The undersigned acknowledges that it has been
advised to consult with its own attorney regarding legal matters concerning the
Company and to consult with its tax advisor regarding the tax consequences of
acquiring the Securities. Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP is counsel to
the Company in the transactions contemplated hereby and herein.
(g) No Distribution. The undersigned is acquiring the Securities for
its own account for investment and not with a view to or for resale in
connection with any distribution of the Securities. It has not offered or sold
any portion of the Securities and has no present intention of dividing the
Securities with others or of selling, distributing or otherwise disposing of any
portion of the Securities either currently or after the passage of a fixed or
determinable
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period of time or upon the occurrence or non-occurrence of any predetermined
event or circumstance.
(h) No Registration. The undersigned understands that the sale of the
Securities has not been registered under the Act in reliance upon an exemption
therefrom for non-public or limited offerings. The undersigned understands that
the Securities must be held indefinitely unless the sale or other transfer
thereof is subsequently registered under the Act or an exemption from such
registration is available at that time.
(i) Registration Rights. If equity securities are issued as
consideration for the principal and accrued interest due on the promissory note,
the undersigned shall have registration rights with respect to the Shares then
held by the undersigned. The Company agrees to file a registration statement to
register the Shares on or before December 31, 2001 (the "Required Filing Date").
The Company shall respond to comments of the Securities and Exchange Commission
("SEC") within ten (10) business days of receipt of said comments and will use
its reasonable best efforts to cause the registration statement to be declared
effective by the SEC on or before March 31, 2002 (the "Required Effectiveness
Date"). The Company shall keep the registration statement continuously effective
through November 15, 2002, and shall cause the related prospectus to be amended
or supplemented by a required prospectus supplement pursuant to Rule 424 under
the Securities Act of 1933, as amended. If the registration statement is not
filed on or before the Required Filing Date or if the registration statement is
not declared effective with respect to the Shares on or before the Required
Effectiveness Date (each such failure being referred to as an "Event"), the
Company shall pay as liquidated damages and not as a penalty to the undersigned
an amount equal to 2% of the purchase price of the Subscription Shares for each
30-day period until the applicable Event has been cured. The amount of the
liquidated damages shall be prorated on a daily basis for periods less than 30
days. The liquidated damages shall be paid within five (5) business days of the
end of each month during which the Event has occurred and is continuing.
(j) Additional Transfer Restrictions. The undersigned understands and
agrees that, in addition to the restrictions set forth in this agreement, the
following restrictions and limitations are applicable to its purchase of the
Securities and any resales, pledges, hypothecations or other transfers of the
Securities:
(i) The following legend reflecting all applicable restrictions
will be placed on any certificate(s) or other document(s) evidencing
the Warrants or the Shares and the undersigned must comply with the
terms and conditions set forth in such legends prior to any resales,
pledges, hypothecations or other transfers of the Shares:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED AND MAY NOT BE TRANSFERRED UNLESS (A) THE SHAREHOLDER
WISHING TO TRANSFER SUCH SECURITIES PROVIDES AN OPINION OF COUNSEL
REASONABLY CONCURRED IN BY COUNSEL FOR TRINITY MEDICAL GROUP USA, INC.
(THE "COMPANY") STATING THAT THE PROPOSED TRANSFER OF THE COMPANY'S
SECURITIES IS EXEMPT FROM THE REGISTRATION PROVISIONS OF ALL
APPLICABLE FEDERAL AND STATE LAWS; OR (B) SAID SECURITIES HAVE BEEN
REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED."
(ii) Stop transfer instructions have been or will be placed on
any certificates or other documents evidencing the Warrant or the
Shares so as to restrict the
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resale, pledge, hypothecation or other transfer thereof in accordance
with the provisions hereof.
(k) No Advertisements. The undersigned is not subscribing for the
Securities 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.
(l) Capacity. The undersigned, if an individual, has reached the age
of majority in the state in which the undersigned resides, has adequate means of
providing for the undersigned's current financial needs and contingencies, is
able to bear the substantial economic risks of an investment in the Securities
for an indefinite period of time, has no need for liquidity in such investment,
and, at the present time, could afford a complete loss of such investment.
(m) Indemnity. The undersigned shall indemnify and hold harmless the
Company and each officer, director or control person of the Company, who is or
may be a party or is or may be threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of or arising from any actual or
alleged misrepresentation or misstatement of facts or omission to represent or
state facts made or alleged to have been made by the undersigned to the Company,
or omitted or alleged to have been omitted by the undersigned, concerning the
undersigned, or its authority to invest or financial position in connection with
the offering or sale of the Securities, including, without limitation, any such
misrepresentation, misstatement or omission contained herein or any other
document submitted by the undersigned, against losses, liabilities and expenses
for which the Company, or any officer, director or control person of the Company
has not otherwise been reimbursed (including attorneys' fees, judgments, fines
and amounts paid in settlement) actually and reasonably incurred by the Company
or such officer, director or control person in connection with such action, suit
or proceeding. In connection with this indemnity, the undersigned represents
that all of the information provided herein by the undersigned is true, complete
and correct in all respects.
(n) Legends. The undersigned acknowledges that it has reviewed the
following legends:
PURCHASE OF THE SECURITIES INVOLVES A HIGH DEGREE OF RISK AND SHOULD BE
CONSIDERED ONLY BY PERSONS WHO CAN AFFORD TO SUSTAIN A TOTAL LOSS OF THEIR
INVESTMENT.
THE SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED FOR SALE TO THE
PUBLIC UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY OTHER
SECURITIES LAWS, AND WILL BE OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF SUCH LAWS. CONSEQUENTLY, THE SECURITIES MAY NOT BE
OFFERED, SOLD, OR OTHERWISE TRANSFERRED OR DELIVERED BY ANY INVESTOR EXCEPT, IN
THE OPINION OF COUNSEL FOR OR SATISFACTORY TO THE COMPANY, PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH
APPLICABLE STATE OR OTHER SECURITIES LAWS. THE SECURITIES WILL BEAR A
RESTRICTIVE LEGEND TO THE FOREGOING EFFECT, AND EACH INVESTOR MUST SIGN AN
INVESTMENT REPRESENTATION CONSISTENT WITH THE FOREGOING.
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THERE IS CURRENTLY NO PUBLIC OR OTHER MARKET FOR THE SECURITIES AND THERE
CAN BE NO ASSURANCE THAT A PUBLIC OR OTHER MARKET WILL DEVELOP. INVESTORS SHOULD
BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISK OF THE INVESTMENT
FOR AN INDEFINITE PERIOD OF TIME.
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS
AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR
STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
(o) Residence. The undersigned (check below if applicable):
|_| is not a "U.S. person," as such term is defined in Regulation S
promulgated under the Act.
|_| is not acquiring the Shares for the account of any U.S. person.
Purchaser Co-Owner
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|_| |_| (i) I am a United States citizen or resident of the
United States for federal income tax purposes.
|_| |_| (ii) I am neither a United States citizen nor a
resident of the United States for United States
federal income tax purposes.
3. ALL INFORMATION CONTAINED IN THIS AGREEMENT WILL BE TREATED
CONFIDENTIALLY. However, the undersigned agrees that the Company may present
this agreement to such parties as the Company deems appropriate if called upon
to establish that the proposed offer and sale of the Securities is exempt from
registration under the Act or meets the requirements of applicable state
securities law.
4. The undersigned will notify the Company immediately of any material
change in any representation made or any statement made in this agreement that
occurs prior to the closing of the sale of the Subscription Shares and the
Warrant. The representations, warranties and covenants of the undersigned shall
survive the closing of the sale of the Subscription Shares and the Warrant. The
undersigned understands and acknowledges that the Company is relying upon such
information provided in this agreement to determine that the exemption from the
registration provisions of the Act for non-public offerings is applicable to the
offer and sale of the Subscription Shares and the Warrant.
5. Subscription and Method of Payment. (a) The undersigned shall (i)
deliver to Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP, The Chrysler Building, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxxxxxx X. Xxxxxxx the
executed agreement by overnight courier or facsimile (with original to follow by
overnight courier) and (ii) deliver to the
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Company the amount set forth on page 1 of this agreement as the purchase price
for the Subscription Shares and the Warrant (the "Purchase Price") by check
payable to the Company or by wire transfer of immediately available funds to the
account specified by the Company.
(b) Promptly upon receipt of the funds and documents required so to be
delivered and upon acceptance by the Company of the undersigned's offer to
subscribe for the shares, the Company shall deliver the Promissory Note to the
undersigned registered in the name of the undersigned (or, if the undersigned
shall have a nominee, registered in the name of such nominee). If the Company
does not accept the undersigned's offer to subscribe for the Subscription Shares
and the Warrant, the Company shall return the Purchase Price to the undersigned
without interest.
6. The undersigned shall not, directly or indirectly, whether voluntarily,
by operation of law, upon death or otherwise, sell, pledge, mortgage,
hypothecate, give, bequeath, transfer, create a security interest in or lien on,
place in trust (voting or otherwise), assign or in any other way whatsoever
encumber or dispose of, any of the Shares (or any interest therein), or the
stock certificate or certificates representing Shares.
7. Miscellaneous.
(a) The undersigned agrees not to transfer or assign this agreement, the
Warrant or the Shares or any of the undersigned's interest herein, and further
agrees that the transfer or assignment of this agreement, the Warrant or the
Shares shall be made only upon approval of the Company and in accordance with
all applicable laws.
(b) This agreement constitutes the entire agreement between the
undersigned and the Company with respect to the subject matter hereof. This
agreement may be amended only by a writing executed by both of them.
(c) This agreement shall be enforced, and construed in accordance with
the laws of the State of New York, without regard to the principles of conflicts
of laws thereof. Each of the parties hereto hereby irrevocably consents and
submits to the exclusive jurisdiction of the United States District Court for
the Southern District of New York in connection with any proceeding arising out
of or relating to this agreement or the transactions contemplated hereby, waives
any objection to venue in such District (unless such court lacks jurisdiction
with respect to such proceeding, in which case, each of the parties hereto
irrevocably consents to the jurisdiction of the courts of the State of New York
in connection with such proceeding and waives any objection to venue in New York
County, State of New York), and agrees that service of any summons, complaint,
notice or other process relating to such proceeding may be effected in the
manner provided by clause (d) of this paragraph 7. All of the fees and expenses
of such proceeding, together with all reasonable attorney's and accountant's
fees and expenses of each party hereto in connection therewith, shall be borne
by the losing party or parties, or as allocated by the court.
(d) Any notice, demand, request or other communication which is required,
called for or contemplated to be given or made hereunder to or upon any party
hereto shall be deemed to have been duly given or made for all purposes if (a)
in writing and sent by (i) messenger or an overnight courier service for next
day delivery with receipt therefor, or (ii) certified or registered mail,
postage paid, return receipt requested, or (b) sent by telegram, facsimile
transmission or similar electronic means, with a written copy thereof sent on
the same day by postage paid first-class mail, to such party at the following
address:
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To the undersigned at:
Investor:_________________________
Address
Suite ___
City, State/Province Zip/Postal Code
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Attn:
Telecopier No.: (___) ___-____
with a copy to:
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Street
Suite __
City, State/Province Zip/Postal Code
--------------------------------
Attention:
Telecopier No.: (___) ___-____
To the Company at:
Trinity Medical Group USA, Inc.
30021 Xxxxx, Xxxxx 000
Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx, Chief Financial Officer
Telecopier No.: (000) 000-0000
with a copy to:
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
or such other address as either party hereto may at any time, or from time to
time, direct by notice given to the other party in accordance with this section.
The date of giving or making of any such notice or demand shall be, in the case
of clause (a)(i), the date of the receipt; in the case of clause (a)(ii), five
(5) business days after such notice or demand is sent; and, in the case of
clause (b), the business day next following the date such notice or demand is
sent.
(e) This agreement may be executed in counterparts. In the event that any
provision of this agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this agreement shall continue
in full force and effect without said provision.
(f) Except as otherwise provided herein, no amendment of this agreement
shall be valid or effective, unless in writing and signing by or on behalf of
the parties hereto.
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(g) No course of dealing or omission or delay on the part of either party
hereto in asserting or exercising any right hereunder shall constitute or
operate as a waiver of any such right. No waiver of any provision hereof shall
be effective, unless in writing and signed by or on behalf of the party to be
charged therewith. No waiver shall be deemed a continuing waiver or waiver in
respect of any other or subsequent breach or default, unless expressly so stated
in writing.
(h) The provisions hereof are severable and in the event that any
provision of this agreement shall be determined to be invalid or unenforceable
in any respect by a court of competent jurisdiction, the remaining provisions
hereof shall not be affected, but shall, subject to the discretion of such
court, remain in full force and effect, and any invalid or unenforceable
provision shall be deemed, without further action on the part of the parties
hereto, amended and limited to the extent necessary to render the same valid and
enforceable.
(i) Each party hereto covenants and agrees promptly to execute, deliver,
file or record such agreements, instruments, certificates and other documents
and to perform such other and further acts as the other party hereto may
reasonably request or as may otherwise be necessary or proper to consummate and
perfect the transactions contemplated hereby.
(j) This agreement, and each right, interest and obligation hereunder,
may not be assigned by either party hereto without the prior written consent of
the other party hereto, and any purported assignment without such consent shall
be void and without effect.
(k) The section and other headings contained in this agreement are for
convenience of reference only and do not in any way define or interpret the
intent of the parties or modify or otherwise affect any of the provisions
hereof.
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SUBSCRIBER INFORMATION
Please print here the exact name in which the investor desires go to have
the Shares registered (must be beneficial owner).
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All correspondence relating to the undersigned's investment should be sent
(check one):
|X| (i) to the address of the undersigned set forth on the signature
page hereof
|_| (ii) to the following address:
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The undersigned may be contacted by telephone at the following telephone
number(s):
(i) Home Telephone (___)_______________________
(ii) Business Telephone (___) ___-____
Amount of Promissory Note: $ 20,000
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SIGNATURE PAGE
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FOR INDIVIDUAL INVESTORS
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Signature of Investor
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Name (please type or print)
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Signature of Spouse or Co-Owner if funds are
to be invested as joint tenants by the entirety
or community property.
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Name (please type or print)
Executed at , this 1st day of October, 2001.
City State/Province
SUBSCRIPTION ACCEPTED:
TRINITY MEDICAL GROUP USA, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxx -----------------------
Title: CFO Name: Xxxxx X. Xxxxxxx
Title: CEO
Date: October 1, 2001
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