Exhibit 10.6
SHARE PURCHASE AGREEMENT
(SHAREHOLDERS/OUTSIDERS)
THIS SHARE PURCHASE AGREEMENT (the "AGREEMENT") is dated as of
February 1, 2000, by and among (i) GIVEN IMAGING LTD., an Israeli private
company, PC#51- 257802-2, with its principal offices at Xxxx. 0, Xxx Xxxxxxxxxx
Xxxx, Xxxxxxx 00000 (the "COMPANY"), and (ii) those individuals whose name
appear in SCHEDULE A hereof and who have executed a counterpart signature page
hereof, severally and not jointly (each of them a "PURCHASER", and collectively,
the "PURCHASERS").
Recitals:
1st. The Company requires financing in the aggregate amount as
set forth in SCHEDULE A hereof; and
2nd. Each Purchaser wishes to subscribe for and purchase from
the Company, and the Company wishes to offer and sell to each such Purchaser,
Purchased Shares (as defined below) in consideration for the amount specified
opposite to such Purchaser's name in SCHEDULE A hereto, and pursuant to the
terms and conditions as set forth in herein; and
3rd. The Company and Purchasers wish not to negotiate the
purchase price for the securities to be purchased hereunder but use the price
and company-value determined at arms' length capital raising transactions
between the Company and non-affiliated investors, which, (i) if such transaction
DOES NOT occur within a certain period specified herein, then such price shall
be the same as determined in the Company's last capital raising transaction with
non affiliated investors, and (ii) if such transaction DOES occur within such
period, then such price shall be based on the Company's value in such
transaction discounted by 5% per month (calculated on a daily basis) from the
date on which the terms of this investment were concluded and the closing of
such capital raising transaction (up to a maximum total discount of 25%), to
reflect the additional risk associated with the Purchasers'
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current investment hereunder until the Company secures itself sufficient
financing to complete certain critical phases;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties agree as follows:
1. CERTAIN DEFINITIONS. In this agreement the following terms
shall have the respective meaning set opposite thereto:
"CAPITAL TRANSACTION" shall mean the first to occur, following
the date of this Agreement, transaction or a series of related transactions in
which the Company shall sell any class of its Securities, directly or
indirectly, for an aggregate consideration of $3,000,000 or more.
"DISCOUNT FACTOR" shall mean the lower of (i) 0.25 and (ii)
0.00166 times the number of days to elapse from January 31, 2000 and until the
closing of the Capital Transaction.
"DOLLAR" or "$" shall mean one United States Dollar.
"LAST REFERENCE DATE" shall mean December 31, 2000, or, if a
definitive agreement for a Capital Transaction is signed prior to such date,
then the last date on which pursuant to such agreement the closing of such
Capital Transaction may take place.
"LIENS" shall mean any third party right or claim, including but
not limited to, any mortgage, pledge, lien, encumbrance, charge or other
security interest of whatever type or description, and any option, license,
lease, preemptive right, purchase right, right of first refusal or any other
rights of third parties of whatever nature, type or description, except only as
may be provided for under the Articles of Association of the Company and in
accordance with Section 3.2 below.
"ORDINARY SHARES" shall mean Ordinary Shares of the Company, par
value NIS 0.01 per share, bearing the rights, privileges and restrictions as set
forth under the Articles of Association of the Company.
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"ORDINARY SHARE PRICE" shall mean $7.61 (seven Dollars and
sixty-one cents) per share, subject to equitable adjustments determined by the
Board of Directors of the Company for any bonus shares, stock splits or
consolidations or other capital reorganizations or restructuring pursuant to
which the outstanding share capital of the Company is divided into a different
number of shares.
"PREFERRED SHARES" shall mean Preferred Shares of the Company,
par value NIS 0.01 per share, or an equivalent thereof, regardless of its name
or denomination, but in any case bearing such rights, privileges and
restrictions as stipulated by Section 3.2 below.
"PREFERRED SHARE PRICE" shall mean (i) the aggregate purchase
price paid in the Capital Transaction in consideration for any Securities of the
Company issued or sold in such transaction, divided by (ii) the aggregate number
of shares of the Company's share capital to be issued or sold in such
transaction, and multiplied by (iii) one minus the Discount Factor.
"PURCHASED SHARES" shall mean either Preferred Shares or Ordinary
Shares as shall be purchased pursuant to Section 2.2 hereof.
"REPRESENTATIVE RATE" shall mean the representative rate of
exchange of one Dollar to New Israeli Shekels, as last published by the Bank of
Israel prior to the date of payment of or reference to any amount quoted in this
Agreement in Dollars.
"SECURITIES" shall mean any shares of the share capital of the
Company, of any denomination or class, and any options, warrants, rights or
instruments exercisable to, convertible into or otherwise to acquire, any such
shares of the Company.
"TRANSACTION SHARE PRICE" shall mean the Preferred Share Price or
the Ordinary Share Price, according to the class of the Purchased Shares to be
purchased pursuant to Section 2.2 hereof.
2. ISSUANCE AND PURCHASE OF SHARES.
2.1 ISSUANCE AND PURCHASE OF SHARES. Upon the terms and
subject to the conditions as set forth in this Agreement, the Company hereby
agrees with each Purchaser, and each Purchaser agrees with the Company,
separately and independently from the other Purchasers, that in consideration of
payment by such Purchaser to the Company of the amount
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specified opposite to such Purchaser's name in SCHEDULE A hereof (the "PURCHASE
PRICE"), the Company shall issue, sell and deliver to such Purchaser, and such
Purchaser shall receive and accept from the Company, duly authorized, validly
issued, fully-paid and non-assessable Purchased Shares, free and clear of any
and all Liens, and in a number equal to such Purchaser's Purchase Price divided
by the Transaction Share Price (rounded to the nearest whole number).
2.2 PURCHASED SHARES. (i) If the closing of the Capital
Transaction occurs on or prior to the Last Reference Date, the Purchased Shares
shall be Preferred Shares, and (ii) if no Capital Transaction is consummated on
or prior to the Last Reference Date, the Purchased Shares shall be Ordinary
Shares.
2.3 CLOSING. The consummation of the transactions
contemplated by this Section 2 (the "CLOSING") shall take place and be
consummated between the Company and each Purchaser, whether together with or
independently from any other Purchasers, in two parts (the "FIRST CLOSING"
and the "SECOND CLOSING", respectively). The First Closing, for the payment
of the Purchase Price, shall take place (i) within seven (7) business days
following the execution of this Agreement by both the Company and such
Purchaser, or (ii) at any other time as shall be agreed between the Company
and such Purchaser (the "FIRST CLOSING DATE"). The Second Closing, for the
issuance and delivery of the Purchased Shares to such Purchaser, shall take
place upon, or, if not practicable, then as soon as practicable after, the
earlier to occur between (i) the closing of the Capital Transaction and (ii)
the Last Reference Date, and in each case subject to the prior satisfaction
of all the conditions precedent as set forth in this Agreement (the "SECOND
CLOSING DATE"). The Second Closing and shall take place at the offices of
Zellermayer, Pelossof, at Europe House, 37 Xxxx Xxxxx Blvd., Tel-Aviv,
commencing at 10:00 a.m. or any other place to be agreed between the Company
and such Purchaser.
2.4 CLOSING DELIVERABLES.
(a) PAYMENT OF PURCHASE PRICE. Each Purchaser, upon
the First Closing therewith, shall pay to the Company the Purchase Price
applicable to such Purchaser, in cash, by a bank transfer to the Company's
bank account specified in SCHEDULE B hereto, and
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at the Company's request shall provide the Company with copies of instructions
or other evidence reasonably satisfactory to the Company of the net transfer of
the funds to the Company's account. Payment may be made either in Dollars or in
NIS calculated according to the Representative Rate.
(b) DELIVERY OF SHARES. Upon the Second Closing
with each Purchaser, the Company shall issue and deliver to such Purchaser, in
consideration for the Purchase Price paid thereby at the First Closing,
Purchased Shares, duly authorized, validly issued, fully-paid, non-assessable
and free and clear of all Liens, and in the number purchased by such Purchaser
as provided by Section 2.1 above, and the Company shall further deliver to such
Purchaser any other Securities to which such Purchaser may be entitled pursuant
to Section 3.1 hereof, share certificate or certificates representing the
Purchased Shares and instruments evidencing such other Securities, if any.
Against receipt of the Purchased Shares, each Purchaser shall execute and
deliver to the Company a proxy pursuant to Section 3.3 hereof.
2.5 CONDITIONS TO SECOND CLOSING.
(a) GOVERNMENTAL APPROVALS. If the issue and sale
of Purchased Shares to any particular Purchaser will require the grant or
receipt of any consent or approval of any governmental or administrative
authority, then the Second Closing shall occur not earlier than the grant or
receipt of such consent or approval, as the case may be, and each of the Company
and the Purchaser for whom such consent or approval is necessary shall exercise
its respective best efforts, do all reasonable things necessary on its part,
including, if necessary and after exhausting all other alternatives, agree to
any reasonable and immaterial changes in the of the non-financial terms of this
Agreement and solely as between the Company and such Purchaser, in order to
obtain such consent or approval. Without limiting the foregoing, Purchasers who
are not Israeli residents will, if required, as a condition for the Second
Closing, execute and deliver an undertaking to comply with the provisions of the
Israeli Law of Encouragement of Investments in Research and Development in the
Industry, 1984, in form satisfactory to the Chief Scientist of the Ministry of
Industry and Commerce.
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(b) SECURITIES ACT REPRESENTATION. Each Purchaser
shall have delivered to the Company an executed statement in the form contained
in SCHEDULE C hereto.
3. CERTAIN COVENANTS. The Company and each Purchaser hereby agree
and undertake to each other as follows:
3.1 TERMS AND CONDITIONS OF THE CAPITAL TRANSACTION. Each
Purchaser shall have all rights and benefits whatsoever as the investors who are
direct parties to the Capital Transaction, including the same representations,
warranties and covenants, and be subject to the same undertakings and covenants
as such investors other than undertakings and covenants for payment of any kind
in respect of the Purchased Shares in addition to the Purchase Price hereunder.
If in such Capital Transaction the Company shall issue more than one class or
type of Securities, then each Purchaser shall receive, upon the Second Closing
and for no additional consideration, Securities of the same or the equivalent
classes or types and under the same conditions and terms, including in the same
proportions, as the investors in such Capital Transaction shall receive.
3.2 RIGHTS OF THE PREFERRED SHARES. Without derogating from
the provisions of Section 3.1 above, the Preferred Shares to be issued to each
Purchaser pursuant to this Agreement shall bear the same rights, privileges and
restrictions as the shares to be issued at the Capital Transaction; PROVIDED,
HOWEVER, that the Company may allocate to the Purchasers a class of shares which
is separate from the class of shares to be issued in such Capital Transaction,
but otherwise the two classes shall be identical.
3.3 GRANT OF PROXY. Upon the Second Closing, each Purchaser
(who at such time does not hold any voting security of the Company) shall
appoint RDC Xxxxxx Development Corporation Ltd. as his proxy to vote all
Purchased Shares and other Securities that may be issued to him at the Second
Closing and other voting securities of the Company that may be thereafter issued
to such Purchaser in respect thereof (and if such proxy will request to
discontinue the appointment, then the Company and the Purchasers holding the
majority of Preferred Shares under which the appointment of such proxy was made,
shall mutually agree on a substitute). The instrument of proxy shall be
irrevocable, shall be in a
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form designated by the Board of Directors of the Company and will automatically
expire upon the earlier of (i) the closing of any initial public offering of any
Securities of the Company, and (ii) the sale of all or substantially all of the
outstanding shares of the Company.
3.4 AMENDMENTS. Technical changes in the terms of this
Agreement which shall be required to facilitate the Capital Transaction may be
made unilaterally by the Board of Directors of the Company acting unanimously.
Notwithstanding the foregoing, any change or amendment which may adversely
effect the Purchasers' rights pursuant to this Agreement or the Capital
Transaction may be made only with the written consent of Purchasers holding or
entitled to receive the majority of Purchased Shares issued or issuable pursuant
to this Agreement; PROVIDED, HOWEVER, that no change or amendment shall be made
to this Agreement which would have the effect of reducing the financial value of
the any Purchaser's rights hereunder without the express written consent of such
Purchaser.
3.5 OTHER TRANSACTIONS. If at any time between the
consummation of the First and the Second Closing with any Purchaser, the
Company and/or its shareholders enter into a definitive agreement for the
issuance or sale of Securities constituting immediately thereafter a majority
of the outstanding shares of the Company or for the sale, license or other
disposition of substantially all of its assets, or the merger of the Company
with or consolidation into another entity or a similar form of corporate
reorganization where the Company is not the surviving entity (any of the
foregoing hereinafter referred to as, an "OTHER TRANSACTION"), then
immediately prior to the closing of such Other Transaction, and in lieu of
the issuance of Purchased Shares as contemplated by Section 2 of this
Agreement, the Company shall issue and deliver to each Purchaser who has
performed its obligations at the First Closing, duly authorized, validly
issued, fully paid and non assessable Ordinary Shares, in a number reflecting
a twenty-five percent (25%) discount on the Company value at which the
Company reasonably anticipates at the date hereof to be valued in a Capital
Transaction, had it occurred prior to such Other Transaction.
4. REPRESENTATION AND WARRANTIES BY PURCHASERS. Each Purchaser
hereby represents and warrants to the Company the following to be true and
correct:
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4.1 Such Purchaser hereby acquires the Preferred Shares for
his own account and not with a view to a distribution or resale of any of such
Preferred Shares in violation of any applicable securities laws.
4.2 Such Purchaser comes within at least one of the following
categories (as indicated above such Purchaser's name in the declaration on the
form of SCHEDULE C hereto: (i) Such Purchaser is not a "U.S. Person" (as defined
in Rule 902 under the Securities Act, 1933 of the United States; the "SECURITIES
ACT"), or (ii) such Purchaser is an "Accredited Investor" (as defined in Rule
501 under the Securities Act).
4.3 Such Purchaser is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investments of the type contemplated by this Agreement and has such knowledge
and experience in financial and business matters that he is capable of
evaluating the merits and risks of his investment hereunder. Such Purchaser has
had the opportunity to receive all information which he deems relevant for the
purpose of his investment, and waives any right or claim with respect to
insufficient disclosure of information by the Company or the inadequacy of the
Purchased Shares or other Securities issuable hereunder to the purposes of his
investment hereunder. Such Purchaser acknowledges and is aware that the Company
is a high-tech "start-up" company, that there can be no assurance that the
Company will achieve its business or technological goals or projections, that
the Company is a private company and therefore no market for the Preferred
Shares or the Securities issuable thereunder exists and there can be no
assurance that such market will exist in the future, that the investment in the
Company involves a high degree of risk, and that he can sustain the loss of his
entire investment hereunder.
4.4 Such Purchaser agrees that the certificate representing
the Purchased Shares and Securities that may be issued by virtue thereof may
bear a legend in customary form or in any form substantially as set forth below
or such other form that may be required pursuant to the terms of any exemption
from registration under any Securities Laws of the United States:
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"THE SECURITIES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS AND HAVE BEEN TAKEN FOR
INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO THE
DISTRIBUTION THEREOF, AND NEITHER SUCH SECURITIES
NOR ANY INTEREST THEREIN MAY BE SOLD, ASSIGNED OR
TRANSFERRED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND ANY
APPLICABLE STATE SECURITIES LAW COVERING SUCH
SECURITIES OR THE CORPORATION RECEIVES AN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION OR
OTHER EVIDENCE REASONABLY ACCEPTABLE TO THE
CORPORATION INDICATING THAT SUCH SALE, TRANSFER OR
ASSIGNMENT IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND ANY
APPLICABLE STATE SECURITIES LAW."
5. WAIVER OF PREEMPTIVE RIGHTS. The Company hereby represents and
warrants to each Purchaser that all shareholders of the Company having
preemptive (or similar) rights with respect to the issuance of the Purchased
Shares as contemplated by this Agreement have irrevocably waived such rights.
6. MISCELLANEOUS.
6.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties and cancels any prior understandings, agreements,
or representations by or between the parties with respect to the subject matter
hereof, written or oral, to the extent they related to the subject matter
hereof.
6.2 THE PARTIES. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective successors
and permitted assigns. This Agreement is entered into separately between the
Company and each Purchaser who has executed a counterpart signature page
thereof, regardless of whether it is executed or not executed by any other
Purchaser named herein. No breach, failure to perform or termination of this
Agreement by any Purchaser or as between such Purchaser and the Company will
affect this Agreement as between the Company and all other Purchasers, among
which it shall continue to have full force and effect as a completely
independent contract. Accordingly, a
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Purchaser may assign its rights under this Agreement to any other person or
entity subject only to the written consent of the Company, which may be granted
or withheld for any reason. Except as otherwise provided herein, neither party
may assign either this Agreement or any of its rights, interests or obligations
hereunder without the prior written approval of the other party.
6.3 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
6.4 HEADINGS. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.5 NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing, and shall be deemed duly given if
(and then five business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth below:
A. If to the Company:
GIven Imaging Ltd.
Xxxxxxxx 0
Xxx Xxxxxxxxxx Xxxx
X.X.Xxx 000
Xxxxxxx 00000 Xxxxxx
Facsimile: x000-0-000-0000
Attention: Xxxxx Krupik, Chairman of the Board
B. If to a Purchaser:
To the address of such Purchaser as specified
opposite to its name in SCHEDULE A hereto.
Any party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail or electronic
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mail), but no such notice, request, demand, claim, or other communication shall
be deemed to have been duly given until the next business day after actual
receipt thereof is confirmed by the intended recipient. Any party may change the
address to which notices, requests, demands, claims and other communications
hereunder are to be delivered by giving the other party notice in the manner
herein set forth. A Purchaser may change such address by notice only to the
Company.
6.6 GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Israel, without giving effect to any choice or conflict of law provision or rule
(whether of the State of Israel or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Israel. Any
suit, action or proceeding arising out of or relating to this Agreement shall be
instituted exclusively in the competent courts situated in the Tel-Aviv
District.
6.7 AMENDMENT AND WAIVERS. Except as provided in Section 3.4
above, no amendment of any provision of this Agreement shall be valid unless the
same shall be in writing and signed by the parties. No waiver by any party of
any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to be a waiver of any other default,
misrepresentation or breach of warranty or covenant hereunder.
6.8 SEVERABILITY. Any provision of this Agreement will be
considered severable and if any such provision is held by any court with
competent jurisdiction to be invalid, contrary to or in conflict with any
applicable law, then such invalidity, contradiction or conflict will not have
any effect upon all other provisions of this Agreement which will continue to be
given full force and effect and bind the parties in all respects.
6.9 WAIVER OF PREEMPTIVE RIGHTS. Any Purchaser who is a
shareholder of the Company and has the right to be offered to participate in the
purchase by any other Purchaser of the Purchased Shares and/or any other
Securities issuable hereunder, whether under the Company's Articles of
Association or otherwise, by executing and delivering a counterpart signature
page of this Agreement is irrevocably waiving any such right to be offered or to
purchase any such Purchased Shares or other Securities, whether
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pursuant to this Agreement or under any other agreement in substantially the
same form to be entered into by the Company on or about an even date herewith.
* * * *
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COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the Company and the Purchasers have
executed this Share Purchase Agreement as of the date first above written.
COMPANY:
GIVEN IMAGING LTD.
By: /s/ Xx. Xxxxxxx Xxxxx
----------------------
Xx. Xxxxxxx Xxxxx
President and CEO
PURCHASERS:
DISCOUNT INVESTMENT CORPORATION LTD. XXXXXXX FAMILY PROPERTIES LTD.
By: /s/ [ILLEGIBLE] By: /s/ Even Xxxxx
--------------------------------- ----------------------------
Name: Name: Even Xxxxx
Title: Title:
PEC ISRAEL ECONOMIC CORPORATION XXXXXX & CO. TRADING AND
INVESTMENTS LTD.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ [ILLEGIBLE]
--------------------------------- ----------------------------
Name: Xxxxx X. Xxxxxxx Name:
Title: President Title:
ELRON ELECTRONIC INDUSTRIES LTD. XXXXXXXX FAMILY INVESTMENTS
(1999) LTD.
By: /s/ Xxx Xxxx Xxxxx Xxxxxx By: /s/ [ILLEGIBLE]
--------------------------------- ----------------------------
Name: Xxx Xxxx Xxxxx Xxxxxx Name:
Title: CEO CFO Title:
TRIMARAN INVESTMENTS TRUST CLEG INC.
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx Xxxxxxx
--------------------------------- ----------------------------
Name: Xxxxxxx Xxxx Name: Xxxxxx Xxxxxxx
Title: Managing Director Title: President
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SCHEDULE A
PURCHASERS, PURCHASE PRICE AND ADDRESSES
PURCHASER PURCHASE PRICE ADDRESS INITIALS
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00 Xxxx Xxxxxxxx Xxxx
Discount Investment Corporation Ltd. $1,083,333 Tel Aviv
Fax: x000-0-0000000 /s/
Attention: Xxxxxxxx Xxxxxxx, Senior
Vice President
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000 0xx Xxxxxx
XXX Xxxxxx Economic Corporation $1,083,333 Xxx Xxxx, XX 00000
Fax: x0-000-000-0000 /s/
Attention: President
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Advanced Xxxxxxxxxx Xxxxxx, Xxxx. 0,
Xxxxx Electronic Industries Ltd. $1,083,334 Haifa /s/
Fax: x000-0-0000000
Attention: Xxx Xxxx, CEO
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Trimaran Investments Trust 20 Zichron Ya'akov st.
$100,000 Tel-Aviv 62999 /s/
Fax: x000-0-0000000
Attention: Xxxxxxx Xxxx
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Xxxxxxx Family Properties Ltd. 0 Xxxxxx Xxxxx xx.
$300,000 Tel-Aviv 64731 /s/
Fax: x000-0-0000000
Attention: Xxxxx Even
-----------------------------------------------------------------------------------------------------------------------
Xxxxxx & Co. Trading and 15 Lesin st.,P.O.B. 16551
Investments Ltd. $100,000 Tel-Aviv, 61164 /s/
Fax: x000-0-0000000
Attention: Chen Barir
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Xxxxxxxx Family Investments (1999) Xxxxxx 0, Xxxxx,
Ltd. $50,000 Tel-Aviv 69012 /s/
Attention: Xxxx Xxxxxxxx
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Cleg Inc. 22 Sacramento st.
$50,000 Xxxxxxxxx XX 00000, /s/
USA
Attention: President
-----------------------------------------------------------------------------------------------------------------------
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SCHEDULE B
BANK ACCOUNT
Account Name:
Given Imaging Ltd.
Number: 074600/44
Bank: Bank Leumi Le'Israel X.X.
Xxxxxx: 729
Swift Code(*): LEUMI IL IT INT
Please indicate(*): By Yoqneam Branch (729)
----------------------------
* For wiring international.
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SCHEDULE C
SECURITIES ACT, 1933
(the "Act")
I/We hereby represent and warrant that I/We am/are familiar
with the definition of "U.S. Person" in Rule 902(k) under the Act* and that I/We
am/are not a "U.S. Person" within such definition.
SIGNATURE BY A CORPORATION: Name:
--------------------------
By:
--------------------------
Name:
Title:
SIGNATURE BY AN INDIVIDUAL: Name:
--------------------------
Signature:
---------------------
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
I/We hereby represent and warrant that I/We am/are familiar
with the definition of "Accredited Investor" in Rule 501(a) under the Act* and
that I/We am/are an "Accredited Investor" within such definition.
SIGNATURE BY A CORPORATION: Name:
--------------------------
By:
--------------------------
Name:
Title:
SIGNATURE BY AN INDIVIDUAL: Name:
--------------------------
Signature:
---------------------
---------------
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* The following page contains certain frequently applicable portions of these
definitions but which are not exhaustive.
I. A "U.S. PERSON" (AS DEFINED IN RULE 902(k)) GENERALLY MEANS:
1. Any natural person resident in the United States;
2. Any partnership or corporation organized or incorporated
under the laws of the United States;
3. Any estate of which any executor or administrator is a U.S.
Person;
4. Any trust of which any trustee is a U.S. Person;
5. Any agency or branch of a foreign entity located in the
United States;
6. Any non-discretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. Person.
7. 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
8. Any partnership or corporation if:
(i) Organized or incorporated under the laws of any
foreign jurisdiction; and
(ii) Formed by a U.S. person principally for the purpose
of investing in securities not registered under the Securities
Act, unless it is organized or incorporated, and owned by,
accredited investors (as defined in Rule 501(a)) who are not
natural persons, estates or trusts.
II. AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)) GENERALLY MEANS:
1. Any 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;
2. Any director or executive officer of the issuer of the
securities being offered or sold;
3. Any natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his purchase exceeds
$1,000,000;
4. Any natural person who has 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;
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