SUBSCRIPTION AGREEMENT
EXHIBIT A
DELIGHTFULLY FROZEN CORP.,
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
The undersigned has received and read the Confidential Private Placement
Memorandum dated October 23, 2002 ("Memorandum"), pursuant to which Delightfully
Frozen Corp., a Texas corporation ("Company"), is offering for sale to the
undersigned shares of the Company's $.001 par value common stock at a purchase
price of $0.15 per share ("Offered Shares"). The terms used and not defined in
this Subscription Agreement have the meanings specified for such terms in the
Memorandum.
1. SUBSCRIPTION. On the terms and subject to the conditions of this Subscription
Agreement and the Memorandum, the undersigned hereby subscribes for the number
of Offered Shares of the Company, specified below for a subscription price of
$0.15 per Offered Share. The undersigned hereby agrees that this subscription
shall be irrevocable and shall survive the death or disability of the
undersigned. Payment of the purchase price for the Offered Shares is due upon
subscription.
2. ACCEPTANCE OF SUBSCRIPTION. The undersigned acknowledges that (i) the Company
has the right to accept or reject this subscription in whole or in part, and
(ii) this subscription shall be deemed to be accepted by the Company only when
this Subscription Agreement is signed by the Company. The undersigned agrees
that subscriptions need not be accepted by the Company in the order in which
subscriptions are received.
3. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE UNDERSIGNED. The
undersigned hereby represents and warrants to and covenants with the Company,
the Company's officers, directors, employees, attorneys, agents and any person
who has solicited this subscription as follows:
(a) The undersigned has adequate means of providing for his or her current
needs and possible personal contingencies, and he or she has no need in
the foreseeable future to sell the Offered Shares. The undersigned is
able to accommodate the economic risks of the undersigned's purchase of
Offered Shares, and the undersigned has a sufficient net worth to
sustain a loss of his or her investment in the Company, or a portion
thereof, in the event such loss should occur.
(b) The undersigned has such knowledge and experience in financial and
business matters that he or she is capable of evaluating the merits and
risks of an investment in the Company.
(c) The undersigned confirms that all documents, records and books,
pertaining to his or her proposed investment in the Company have been
made available to the undersigned.
(d) The undersigned has had an opportunity to ask questions of and receive
satisfactory answers from the Company, or any person or persons acting
on the Company's behalf, concerning the terms and conditions of his or
her proposed investment in the Company, and all such questions have
been answered to the complete satisfaction of the undersigned.
(e) The Offered Shares will be acquired by the undersigned for his or her
own account for investment in a manner which would not require
registration or qualification pursuant to the provisions of the
Securities Act of 1933, as amended ("Act"), or any state Blue Sky law.
(f) The undersigned understands that the offer and sale of the Offered
Shares in the individual states in transactions which satisfy the
requirements of Rule 506 of Regulation D promulgated pursuant to
Section 4(2) of the Securities Act of 1933 are not required to be
registered or qualified in the individual states because of adoption of
the National Securities Markets Improvement Act of 1996 ("NSMIA").
NSMIA preempts state registration and similar qualification provisions
for transactions exempt pursuant to that Rule 506.
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(g) The undersigned represents that it has been called to his or her
attention by those provisions of the Memorandum and by those persons
with whom the undersigned has dealt in connection with his or her
proposed investment in the Company, that the Company has no history of
operation and no earnings and that the undersigned's proposed
investment in the Company involves significant risks which may result
in the loss of that investment, or a portion thereof.
(h) The undersigned has received no representations or warranties in making
his or her investment decision.
(i) The undersigned acknowledges and agrees that the Company has made
available to the undersigned or his or her personal advisors the
opportunity to obtain appropriate information to evaluate the merits
and risks of an investment in the Company.
(j) The undersigned understands that neither the Securities and Exchange
Commission nor any Securities Administrator or similar person of any
state or province has made any finding or determination relating to the
fairness of any purchase of the Offered Shares and that neither the
Securities and Exchange Commission nor any Securities Administrator or
similar person of any state or province has or will recommend or
endorse a purchase of the Offered Shares.
(k) The undersigned is now a bona fide citizen of the United States of
America and a bona fide resident of the state set forth below and the
address and Social Security number or federal tax identification number
set forth below are his true and correct residence and Social Security
number or federal tax identification number. The undersigned has no
current intention of becoming a resident of any other state or
jurisdiction. If the undersigned is a corporation, partnership, trust
or other form of business organization, the undersigned represents and
warrants that the undersigned was formed pursuant to the laws of
____________________________________, and the undersigned's principal
place of business is within such state, and that the undersigned was
not organized for the purpose of acquiring Offered Shares.
(l) The undersigned hereby represents and warrants that the undersigned's
total purchase of Offered Shares shall not exceed 10% of the
undersigned's net worth.
(m) By initialing where indicated and appropriate below, the undersigned
hereby represents and warrants that the undersigned is an "Accredited
Investor", as defined by the provisions of Rule 501 of Regulation D
promulgated pursuant to the Act, and falls within one of the following
categories:
______ (1) The undersigned is a director or executive officer of the
officer, Company, or any director, executive or general partner of a
initials general partner of the Company; or
______ (2) The undersigned is a natural person whose individual net worth,
initials or joint net worth with the undersigned's spouse, at the time of
his or her purchase exceeds $1,000,000.00; or
______ (3) The undersigned is a natural person who had an individual income
initials in excess of $200,000.00 in each of the 2 most recent years or
joint income with the undersigned's spouse in excess of
$300,000.00 in each of those years and has a reasonable
expectation of having the same income level in the current year;
or
______ (4) The undersigned is a trust, with total assets in excess of
initials $5,000,000.00, not formed for the specific purpose of acquiring
the securities offered, whose purchase is directed by a
sophisticated person as described in Regulation 230.506(b)(2)(ii)
promulgated pursuant to the Act; or
______ (5) The undersigned is an entity in which all of the equity owners
initials are Accredited Investors.
4. INDEMNIFICATION. The undersigned acknowledges that he or she understands the
meaning and legal consequences of the representations, warranties, and covenants
specified in Paragraph 3 of this Subscription Agreement and that the Company has
relied on such representations, warranties and covenants, and the undersigned
hereby agrees to indemnify and hold harmless the Company, and its officers,
directors, controlling persons, agents, attorneys, accountants, and employees,
from any and all loss, damage or liability due to, or occurring because of, a
breach of any such representation, warranty, or covenant.
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5. SUBSEQUENT REGISTRATION OF OFFERED SHARES. The undersigned has no right to
require that the Offered Shares be registered pursuant to the provisions of the
Act, or otherwise. The undersigned further acknowledges and agrees that the
Company has no obligation to assist the undersigned in obtaining any exemption
from any registration requirements imposed by applicable law. The undersigned
also acknowledges and agrees that he or she shall be responsible for compliance
with all conditions on transfer imposed by a Securities Administrator or similar
person of any state, province or territory.
6. LIMITATION ON TRANSFER OF OFFERED SHARES. The undersigned acknowledges and
agrees that he or she is aware that there are substantial restrictions on the
transferability of the Offered Shares. Because the Offered Shares will not be
registered pursuant to the provisions of the Act (unless the undersigned
exercises his or her right to require such registration), the undersigned agrees
not to sell, transfer, assign, pledge, hypothecate or otherwise dispose of any
Offered Shares unless such sale is exempt from such registration pursuant to the
provisions of the Act or unless the Offered Shares are registered pursuant to
the Act. The undersigned further acknowledges and agrees that the Company has no
obligation to assist the undersigned in obtaining any exemption from any
registration requirements imposed by applicable law. The undersigned also
acknowledges and agrees that he or she shall be responsible for compliance with
all conditions on transfer imposed by a Securities Administrator of any state,
province or territory and for any expenses incurred by the Company for legal and
accounting services in connection with reviewing such a proposed transfer and
issuing opinions in connection therewith.
7. COMPLIANCE WITH ACT. The undersigned understands and agrees that the
following restrictions and limitations are applicable to his or her purchase and
any sale, transfer, assignment, pledge, hypothecation or other disposition of
Offered Shares pursuant to Section 4(2) of the Act and Rule 506 of Regulation D
promulgated pursuant thereto:
(a) The undersigned agrees that the Offered Shares shall not be sold,
pledged, hypothecated or otherwise disposed of unless the Offered
Shares are registered pursuant to the Act and applicable state or other
applicable securities laws or are exempt therefrom.
(b) A legend in substantially the following form has been or will be placed
on any certificate(s) or other documents evidencing the Offered Shares:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT OR DOCUMENT HAVE BEEN ACQUIRED FOR
INVESTMENT ONLY AND HAVE NOT BEEN REGISTERED PURSUANT TO THE PROVISIONS OF THE
SECURITIES ACT OF 1933 AS AMENDED ("ACT"), AND HAVE BEEN OFFERED AND SOLD IN
RELIANCE UPON THE EXEMPTIONS SPECIFIED IN SECTION 4(2) OF THE ACT AND RULE 506
OF REGULATION D PROMULGATED PURSUANT THERETO. WITHOUT SUCH REGISTRATION, SUCH
SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF, EXCEPT UPON DELIVERY TO THE COMPANY OR ITS TRANSFER AGENT
OF AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY OR ITS TRANSFER AGENT THAT
REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER OR THE SUBMISSION TO THE COMPANY
OR ITS TRANSFER AGENT OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO THE
COMPANY OR ITS TRANSFER AGENT TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE
IN VIOLATION OF THE ACT, APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR
REGULATION PROMULGATED PURSUANT THERETO.
(c) Stop transfer instructions to the transfer agent of the Company have
been or will be placed with respect to the Offered Shares so as to
restrict the sale, transfer, pledge, hypothecation or other disposition
thereof, subject to the further terms hereof, including the provisions
of the legend set forth in subparagraph (b) above.
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(d) The legend and stop transfer instructions described in subparagraphs
(b) and (c) above will be placed on any new certificate(s) or other
documents for transfer.
8. Financial Information. The undersigned has previously been furnished an
Offeree Questionnaire which has been completed and executed by the undersigned
and the information contained therein remains true and correct in material
aspects.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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OFFEREE QUESTIONNAIRE
Delightfully Frozen Corp.,
a Texas corporation
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Delightfully Frozen Corp., a Texas corporation ("Company") will use the
responses to this questionnaire to qualify prospective investors for purposes of
federal and state securities laws.
If the answer to any question below is "none" or "not applicable," please
so indicate.
Your answers will be kept confidential at all times. However, by signing
this questionnaire, you agree that the Company may present this questionnaire to
any person, as it deems appropriate to establish the availability of exemptions
from registration pursuant to state and federal securities laws.
PART I. INDIVIDUAL INVESTORS
Investors that are not individuals (that is, are corporations,
partnerships, trusts, etc.) should start at PART II.
1. Name (as it should appear on stock certificate):
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2. Residence address:
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3. Home telephone:
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4. Date of birth:
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5. Social security number:
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6. United States citizen:
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|_| Yes |_| No
If no, country of citizenship:
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7. Occupation:
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8. Number of years:
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9. Present employer:
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10. Position/Title:
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11. Business address:
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12. Business telephone:
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13. Business fax:
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14. Please specify each state and foreign country in which you have maintained
your principal residence during the past three years, and the dates during which
you resided in each:
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15. Are you registered to vote in, or do you have a driver's license issued by,
or do you maintain a residence in any other state or country?
|_| Yes |_| No
If yes, in which state and countries?
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16. Do you reasonably expect that either your own income from all sources during
the current year will exceed $200,000 or the joint income of you and your spouse
(if married) from all sources during the current year will exceed $300,000?
|_| Yes |_| No
If no, please specify the amount: $
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17. Percentage of your income (as shown above) anticipated to be derived from
sources other than salary:
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18. Was your yearly income from all sources during each of the last two years in
excess of $200,000 or was the joint income of you and your spouse (if married)
from all sources during each of those years in excess of $300,000?
|_| Yes |_| No
If no, please specify the amount for last year:$ and the year before:$
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19. Will your net worth as of the date you purchase the Offered Shares, together
with the net worth of your spouse, be in excess of $1 million?
|_| Yes |_| No
If no, please specify the amount: $
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20. Please describe your educational background and degrees obtained, if any:
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21. If you have any existing personal or business relationship with the Company
or any of its officers, directors or controlling persons, please describe the
nature and duration of each relationship:
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22. Please describe in reasonable detail the nature and extent of your business,
financial and investment experience that you believe gives you the capacity to
evaluate the merits and risks of the proposed investment and the capacity to
protect your interests:
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23. Are you purchasing the Offered Shares for your own account and for
investment purposes only?
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|_| Yes |_| No
If no, please specify for whom you are investing and the reason for investing:
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24. In evaluating this investment, will you use the services of any of the
following advisors? If so, please identify, providing address and telephone
number:
|_| Accountant:
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|_| Attorney:
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|_| Licensed investment adviser:
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25. Anticipated dollar amount of subscription:
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26. Indicate type of ownership in which securities will be held:
|_| Individual
|_| Tenants in common
|_| Joint tenancy with rights of survivorship (husband and wife only)
|_| Community property
|_| Other (describe):
In signing below, you acknowledge that the information provided in this
questionnaire is true and correct in all material respects and that you
recognize that the Company and its counsel are relying on the truth and accuracy
of that information in reliance on the exemption contained in Section 4(2) of
the Securities Act of 1933, as amended, and Rule 506 and Regulation D. You agree
to notify the Company promptly of any changes in the foregoing information that
occur before the investment.
Executed at , on .
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(Signature)
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(Print or type name)
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PART II. NONINDIVIDUAL INVESTORS
Please complete this PART II only if the proposed purchase is to be made by
a corporation, partnership, trust or other entity. If the investment will be
made by more than one affiliated entity, please COMPLETE A COPY OF THIS
QUESTIONNAIRE FOR EACH ENTITY.
1. Name (as it will appear on stock certificate):
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2. Address of principal place of business:
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3. Jurisdiction of formation or incorporation:
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4. Contact person:
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5. Telephone number:
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6. Fax number:
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7. Type of entity (corporation, partnership, trust, etc.):
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8. Taxpayer identification number:
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9. Was this entity formed for the purpose of this investment?
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|_| Yes |_| No
If yes, all shareholders, partners or other equity owners must answer PART I of
this Questionnaire.
10. Amount of your proposed investment:$
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11. Entity's net worth at the time the securities will be purchased:$
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12. Check the appropriate box to indicate which of the following accurately
describes the nature of the business conducted by the investing entity:
|_| Private business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940 (namely, a U.S. venture capital fund that
invests primarily through private placements in nonpublicly traded securities
and makes available, either directly or through coinvestors, to the portfolio
companies significant guidance concerning management, operations or business
objectives);
|_| A small business investment company licensed by the U.S. Small Business
Administration pursuant to Section 301(c) or (d) of the Small Business
Investment Act of 1958;
|_| An investment company registered pursuant to the Investment Company Act of
1940 or a business development company as defined in Section 2(a)(48) of that
Act;
|_| A bank as defined in Section 3(a)(2) of the Securities Act of 1933 or a
savings and loan association or other institution defined in Section 3(a)(5)(A)
of that Act, acting in either an individual or fiduciary capacity;
|_| An insurance company as defined in Section 2(13) of the Securities Act of
1933;
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|_| An employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974 (a) whose investment decision is made by
a fiduciary that is either a bank, a savings and loan association, an insurance
company or a registered investment advisor or whose total assets exceed $5
million or (b) if a self-directed plan, whose investment decisions are made
solely by persons who are accredited investors;
|_| An organization described in Internal Revenue Code Section 501(c)(3), a
corporation, a Massachusetts or similar business trust or a partnership, in each
case not formed for the purpose of this investment, with total assets in excess
of $5 million;
|_| An entity not located in the United States and whose equity owners are
neither U.S. citizens nor U.S. residents;
|_| A trust with total assets in excess of $5 million whose purchase is directed
by a sophisticated person as described in Rule 506(b)(2)(ii) under the
Securities Act of 1933;
|_| Other (describe):
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13. Please provide information detailing the business, financial and investment
experience of the entity and investment manager of the entity:
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In signing below, you acknowledge that the information provided in this
questionnaire is true and correct in all material respects and that you
recognize that the Company and its counsel are relying on the truth and accuracy
of that information in reliance on the exemption contained in Section 4(2) of
the Securities Act of 1933, as amended, and Rule 506 and Regulation D. You agree
to notify the Company promptly of any changes in the foregoing information that
occur before the investment.
Executed at , on .
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(Print or type name)
By:
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Title:
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PART III. SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT
Number of Offered Shares subscribe for . Subscription Amount $ (number of
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Offered Shares multiplied by $0.15)
Make check payable to: "Delightfully Frozen Corp."
EACH SUBSCRIBER REPRESENTS THAT:
(a) The information contained in this Subscription Agreement is complete and
accurate and may be relied upon, and
(b) The undersigned will notify the Company immediately of any material change
in any such information occurring prior to the acceptance of the undersigned's
subscription.
IN WITNESS WHEREOF, the undersigned has executed this Subscription Agreement and
initialed the foregoing statements and executed the included questionnaire this
day of , 200 .
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FOR INDIVIDUALS:
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Print Name
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Signature
NAME AND SIGNATURE OF JOINT TENANT OR TENANT IN COMMON
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Print Name
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Signature
FOR TRUSTS, CORPORATIONS, PARTNERSHIPS
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Print Name of Entity
By:
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Print name (Trustee, President or General Partner) of person(s) making
investment decision
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Signature Signature
Agreed to and accepted:
Delightfully Frozen Corp.
a Texas corporation
By:
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Xxx Xxxxxx
Its: President
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