EXHIBIT 4.2
FORM OF SUBSCRIPTION AGREEMENT
TO: ENVIROCLEAN INTERNATIONAL, INC.
00000 XXXXX XXXXX, XXXX XXXXXXX XXX, XXXXX 000
DALLAS, TEXAS 75251
Gentlemen:
We have been informed by you that EnviroClean International, Inc., a
Texas corporation (the "Company") is offering to sell certain Common Stock Units
in the Company at a price per unit as described in and offered pursuant to the
Confidential Private Placement Memorandum dated August 21, 2000 as amended April
1, 2001 (the "Memorandum"). Terms not otherwise defined herein shall have the
meaning attributed to them in the Memorandum.
1. SUBSCRIPTION. Subject to the terms and conditions hereof, the
undersigned hereby tenders this subscription, together with (a) the payment
(by check in lawful funds of the United States payable to the order of
ENVIROCLEAN INTERNATIONAL, INC. - ESCROW ACCOUNT, or by wire transfer into
the account of the Company) of the amount (the "Funds") set forth on the
signature page of this Agreement for the number of Common Stock as set forth
on the signature page of this Agreement; and (b) the Offeree Questionnaire
(the "Subscription Documents"), all in the forms submitted to the undersigned
simultaneously with the delivery of the Memorandum. Tender of the
aforementioned Funds, the Subscription Documents and this agreement shall be
by delivery of same to the Company.
2. ACCEPTANCE OF SUBSCRIPTION; ADOPTION AND APPOINTMENT. It is
understood and agreed that this Agreement is made subject to the following
terms and conditions.
(a) The Company will have the right to accept or reject this
subscription, in whole or in part, for any reason whatsoever. If this
subscription is rejected, the Company will cause the undersigned's
Funds to be refunded, without interest and this Agreement shall be
null, void and of no effect.
(b) The undersigned hereby intends that the undersigned's signature
hereon shall constitute an irrevocable subscription to the Company
for the number of Common Stock specified on the signature page of this
Agreement. Upon satisfaction of the conditions referred to herein, a
copy of the signature page of this Agreement, duly executed by the
Company, will be delivered to the undersigned.
3. REPRESENTATIONS AND WARRANTIES OF THE UNDERSIGNED. The
undersigned hereby represents and warrants to the Company as follows:
(a) The undersigned has (i) adequate means of providing for the
undersigned's current financial needs and possible personal
contingencies, and such subscriber has no need for liquidity of the
undersigned's investment in the Company, (ii) satisfied the net worth
and/or other suitability standards for an investor as described or
referenced under the caption
"Suitability Standards" in the Memorandum, and (ii) has such
knowledge and experience in financial matters that the undersigned
is capable of evaluating the relative risks and merits of this
investment.
(b) The undersigned is a BONA FIDE resident of the state set forth
in the undersigned's Subscription Documents, and the undersigned's
address indicated therein is a true and correct residence, and the
undersigned has no present intention of becoming a resident of any
other state or jurisdiction.
(c) The undersigned has received, read and is thoroughly familiar
with this Agreement, the Subscription Documents and the Memorandum
(particularly the information set forth under the caption "Risk
Factors" in the Memorandum).
(d) The undersigned is aware of the high degree of risk involved in
making an investment in the Company; it being understood, however,
that this representation does not constitute a waiver of any rights
that the undersigned has under the Securities Act of 1933 (the
"Securities Act"), any applicable state securities act or the rules
and regulations promulgated thereunder.
(e) The undersigned has had an opportunity to ask questions of and
received answers from the Company, or a person or persons authorized
on its behalf, concerning the terms and conditions of this investment.
The undersigned confirms that all documents, records and books
pertaining to the investment in the Company and requested by the
undersigned have been made available or delivered to the undersigned
prior the purchase.
(f) The undersigned understands that the Common Stock has not been
registered under the Securities Act or any state securities acts and
are instead being offered and sold in reliance on an exemption for
private offerings, and the undersigned further understands that the
undersigned is purchasing the Common Stock in the Company only in
reliance upon the information set forth in the Memorandum and any
additional written information provided by the Company upon the
undersigned's request.
(g) The Common Stock Units for which the undersigned hereby subscribes
are being acquired solely for the undersigned's own account, for
investment, and are not being purchased with a view to, or for resale
in connection with, any distribution, subdivision or fractionalization
thereof; the undersigned has no present plans to enter into any
contract, undertaking, agreement or arrangement with respect to any
such resale. In order to induce the Company to issue and sell the
Common Stock subscribed for hereby to the undersigned, it is agreed
that the Company will have no obligation to recognize the ownership,
beneficial or otherwise, of such Common Stock by anyone but the
undersigned.
(h) The undersigned has received, completed and returned to the
company the Subscription Documents, and the undersigned hereby affirms
the correctness of the statements and representations contained in the
Subscription Documents.
(i) The undersigned acknowledges, consents to, and is aware of all the
risks related to the investment described in the Memorandum,
including, but not limited to, the following:
(1) That the Company has a limited operating history and the
Common Stock Units are a speculative investment which involves
substantial risk or loss of the undersigned's entire
investment in the Company.
(2) That there are substantial restrictions on the
transferability of the Common Stock, and accordingly, the
undersigned may have to hold the Common Stock indefinitely,
and it may not be possible for the undersigned to liquidate
the investment in the Company.
(3) That no federal or state agency has made any finding or
determination as to the fairness of the offering of the Common
Stock for investment or any recommendation or endorsement of
the Common Stock.
(4) That the Company has never represented, guaranteed or
warranted to the undersigned, its agents or employees or any
other person, expressly or by implication, any of the
following:
(i) The approximate or exact length of time that the
undersigned will be required to remain as owner of the Common
Stock;
(ii) The percentage of profit and/or amount of or
type of return on investment, consideration, profit or loss
to be realized, if any, as a result of this investment;
(iii) That the prior performance on the part of
the Company will in any way indicate the possible result of
the Company; or
(iv) That subscriptions will be accepted in the
order in which they are received,
(5) That the Company shall incur certain costs, expenses
and undertake other actions in reliance upon the
irrevocability of the subscription for Common Stock made
hereunder.
(j) The undersigned, if an individual, is at least 21 years of age and
is not a foreign citizen, but is a BONA FIDE resident and domiciliary
of the state set forth in the Subscription Documents.
(k) The undersigned, is not (i) a "tax exempt entity" within the
meaning of Section 168(j)(4)(A) of the Internal Revenue Code of 1986
(the "Code"), Retirement Account, simplified employee plan, endowment
fund, foundation or other entity generally exempt from federal income
taxation (such as charitable, religious, scientific and educational
organizations);
(ii) a trust created and administered pursuant to Xxxxx (H.R.10)
Plans, a qualified pension or profit sharing and stock bonus plan
which qualifies under Code Section 401(2).
(l) The undersigned has not been furnished any offering
literature other than the Memorandum, the documents attached as
Exhibits thereto and other materials which the Company may have
provided at the request of the undersigned, and the undersigned has
relied only on the information contained in the Memorandum and such
Exhibits and the information furnished or made available to the
undersigned by the Company as described herein.
(m) The undersigned has not distributed the Memorandum to anyone
other than his legal, tax, accounting, or other advisors for their use
solely in that capacity for the undersigned, and no one other than the
undersigned or his legal, tax, accounting, or other advisors, if any,
has used the Memorandum for any other purpose whatsoever.
THE UNDERSIGNED RECOGNIZES THAT THE SALE OF THE COMMON STOCK TO THE
UNDERSIGNED WILL BE BASED UPON THE FOREGOING REPRESENTATIONS AND
WARRANTIES AND THAT THEY ARE TRUE AND ACCURATE AS OF THE DATE OF
DELIVERY OF THE FUNDS TO THE COMPANY AND SHALL SURVIVE SUCH DELIVERY.
IF IN ANY RESPECT SUCH REPRESENTATIONS AND WARRANTIES SHALL NOT BE
TRUE AND ACCURATE PRIOR TO DELIVERY OF THE FUNDS PURSUANT TO PARAGRAPH
I HEREOF, THE UNDERSIGNED SHALL GIVE WRITTEN NOTICE OF SUCH FACT TO
THE COMPANY, SPECIFYING WHICH REPRESENTATIONS AND WARRANTIES ARE NOT
TRUE AND ACCURATE AND THE REASONS THEREFOR.
4. INDEMNIFICATION. The undersigned acknowledges that the
undersigned understands the meaning and legal consequences of the
representations and warranties contained in Paragraph 3 hereof, and the
undersigned hereby indemnifies and holds harmless the Company and each
officer, director, employee and agent thereof from and against any and all
loss, damage or liability due to or arising out of the breach of any
representation or warranty of the undersigned contained in this Agreement.
5. NO WAIVER. Notwithstanding any of the representations,
warranties, acknowledgments or agreements made herein by the undersigned, the
undersigned does not hereby, or in any other manner, waive any rights granted
to the undersigned under federal or state securities laws.
6. TRANSFERABILITY. The undersigned understands and agrees that the
following restrictions and limitations are applicable to the undersigned's
purchase and any resale or other transfer the undersigned may make of the
Common Stock:
(a) The assignment and transferability of the Common Stock acquired
pursuant hereto shall be made only in accordance with applicable
provisions of federal and state securities laws.
(b) A legend in substantially the following form may be placed on any
certificate or other document evidencing the Stock:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED. THE STOCK
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL TO THE COMPANY
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
7. REVOCATION. The undersigned acknowledges and agrees that the
subscription for Common Stock made by the execution and delivery of this
Agreement by the undersigned, is irrevocable and that such subscription shall
survive the death or disability of the undersigned, except as provided
pursuant to the "Blue Sky" laws of certain states, if applicable.
8. MISCELLANEOUS. (a) All notices or other communications given or
made hereunder shall be in writing and shall be delivered or mailed by
registered or certified mail, return receipt requested, postage prepaid, to
the undersigned at the address set forth below and to the Company at
EnviroClean International, Inc., Attn.: Xxxxxxx X. Xxxxxxx, President, 00000
Xxxxx Xxxxx, Xxxx Xxxxxxx XXX, Xxxxx 000, Xxxxxx, Xxxxx 00000.
(b) Notwithstanding the place where this Agreement may be executed
by any of the parties hereto, the parties expressly agree that all of
the terms and provisions hereof shall be construed in accordance with
and governed by the laws of the State of Texas applicable to
agreements made and to be wholly performed therein.
(c) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and may be
amended only by an instrument in writing executed by all parties.
(d) This Agreement shall be binding upon the heirs, estate, legal
representatives, successors and assigns of the parties hereto.
(e) Capitalized terms used, but not otherwise defined in this
Agreement, shall have the respective meanings attributed to such terms
in the Memorandum. All terms used herein shall be deemed to include
the masculine and the feminine and the singular and the plural as the
context requires. Captions herein are for convenient reference only
and shall not alter or affect the meaning of the construction of the
paragraphs hereof to which they relate.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement on the date indicated hereinafter on the following Subscription
Agreement Signature Page.
NUMBER OF COMMON STOCK UNITS SUBSCRIBED FOR:
Units or ____________________ shares
CASH PAID IN FULL AS FOLLOWS:
______ Unit(s) ________ shares at ____________________________________Dollars
A check in the amount of $ __________________________________________
in lawful funds of the United States, the amount of the purchase price of the
number of Common Stock subscribed for, is enclosed herewith and made payable to
ENVIROCLEAN INTERNATIONAL, INC. or a wire transfer in such amount has been made
to the Company's escrow account.
(REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY)
SUBSCRIPTION AGREEMENT SIGNATURE PAGE FOR
INDIVIDUALS AND JOINT TENANTS
EXECUTED THIS ____ DAY OF ___________, 2001 AT _______________________.
NOTARIZATION
STATE OF _________________ Section
COUNTY OF ________________ Section
THE FOREGOING INSTRUMENT WAS SUBSCRIBED AND SWORN TO BEFORE ME THIS
_____ DAY OF _______________, 2001, BY THE UNDERSIGNED. WITNESS MY HAND AND
OFFICIAL SEAL.
SUBSCRIBER'S ADDRESS:
------------------------------------ -----------------------------------
SIGNATURE OF FIRST SUBSCRIBER
------------------------------------ -----------------------------------
PRINTED NAME OF FIRST SUBSCRIBER
------------------------------------
------------------------------------ -----------------------------------
NOTARY PUBLIC
{SEAL} TERM EXPIRES:______________________
SUBSCRIBER'S ADDRESS: ___________________________________
SIGNATURE OF SECOND SUBSCRIBER
------------------------------------
----------------------------------
____________________________________ PRINTED NAME OF SECOND SUBSCRIBER
------------------------------------ ----------------------------------
NOTARY PUBLIC
TERM EXPIRES: ____________________
APPROVED AND ACCEPTED:
ENVIROCLEAN INTERNATIONAL, INC.
A TEXAS CORPORATION
BY: __________________________
XXXXXXX X. XXXXXXX, PRESIDENT
SUBSCRIPTION AGREEMENT SIGNATURE PAGE FOR
CORPORATE INVESTORS
EXECUTED THIS ____ DAY OF __________, 2001 AT ________________________________
________________________________
(NAME OF CORPORATION)
SUBSCRIBER'S ADDRESS: ________________________________
(DATE CORPORATION WAS FORMED)
__________________________________
BY:_____________________________
__________________________________ (SIGNATURE OF AUTHORIZED AGENT)
__________________________________ TITLE: ________________________
TAXPAYER I.D. NUMBER ___________
NOTARIZATION
STATE OF _______________ Section
COUNTY OF _______________ Section
THE FOREGOING INSTRUMENT WAS SUBSCRIBED AND SWORN TO BEFORE ME THIS
____ DAY OF ________________, 2001 , BY THE UNDERSIGNED. WITNESS MY HAND AND
OFFICIAL SEAL.
_____________________________________
NOTARY PUBLIC
{SEAL}
TERM EXPIRES: ______________________
APPROVED AND ACCEPTED.
ENVIROCLEAN INTERNATIONAL, INC.
A TEXAS CORPORATION
BY: ____________________________
XXXXXXX X. XXXXXXX, PRESIDENT
SUBSCRIPTION AGREEMENT SIGNATURE PAGE FOR
PARTNERSHIP INVESTORS
EXECUTED THIS _____ DAY OF ____________, 2001 AT _____________________________
______________________________________
(NAME OF PARTNERSHIP)
SUBSCRIBER'S ADDRESS: ______________________________________
(DATE PARTNERSHIP WAS FORMED)
_______________________________________
BY: __________________________________
_______________________________________ (SIGNATURE OF GENERAL PARTNER)
_______________________________________ BY: __________________________________
(SIGNATURE OF ADDITIONAL GENERAL
PARTNER IF REQUIRED BY PARTNERSHIP
AGREEMENT)
TAXPAYER I.D. NUMBER ________________
NOTARIZATION
STATE OF _________________ Section
COUNTY OF ________________ Section
THE FOREGOING INSTRUMENT WAS SUBSCRIBED AND SWORN TO BEFORE ME THIS
_____ DAY OF ____________, 2001, BY THE UNDERSIGNED. WITNESS MY HAND AND
OFFICIAL SEAL.
______________________________________
NOTARY PUBLIC
TERM EXPIRES:_________________________
APPROVED AND ACCEPTED.
ENVIROCLEAN INTERNATIONAL, INC.,
A TEXAS CORPORATION
BY: _____________________________
XXXXXXX X. XXXXXXX, PRESIDENT
SUBSCRIPTION AGREEMENT SIGNATURE PAGE FOR
TRUST INVESTORS
EXECUTED THIS ____ DAY OF __________, 2001 AT ________________________________
__________________________________
(NAME OF TRUST)
SUBSCRIBER'S ADDRESS: NAME OF TRUSTEE:__________________
________________________________ __________________________________
(DATE TRUST WAS FORMED)
________________________________
________________________________ By: ___________________________________
(SIGNATURE OF ADDITIONAL TRUSTEE
IF REQUIRED BY TRUST AGREEMENT)
TAXPAYER I.D. NUMBER ___________________
NOTARIZATION
STATE OF _________________ Section
COUNTY OF ________________ Section
THE FOREGOING INSTRUMENT WAS SUBSCRIBED AND SWORN TO BEFORE ME THIS
_____ DAY OF ____________, 2001, BY THE UNDERSIGNED. WITNESS MY HAND AND
OFFICIAL SEAL.
___________________________________________
NOTARY PUBLIC
TERM EXPIRES:____________________________-
APPROVED AND ACCEPTED.
ENVIROCLEAN INTERNATIONAL, INC..
A TEXAS CORPORATION
BY: _____________________________
XXXXXXX X. XXXXXXX, PRESIDENT
