PREFERRED VOICE, INC.
Common Stock
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SUBSCRIPTION AGREEMENT
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SUBSCRIPTIONS INSTRUCTIONS
Except as provided by applicable law, your subscription for Common
Stock (the "Stock" or the "Shares") of Preferred Voice, Inc. is irrevocable. The
Company, in its absolute discretion, may reject the subscription request of any
person. Any representation to the contrary is unauthorized and must not be
relied upon.
Two copies of the Subscription Agreement must be properly and fully
completed and signed and returned to the Company. If the Shares subscribed for
are to be owned by more than one person or entity, each co-subscriber must
comply with the subscription instructions. IF AN INVESTMENT IN THE STOCK IS TO
BE MADE OUT OF FUNDS WHICH ARE COMMUNITY PROPERTY OR IN THE JOINT NAME OF
HUSBAND AND WIFE, BOTH SPOUSES MUST SIGN ALL DOCUMENTS.
Subscriber(s) sign(s) as "Subscriber". All Trustees or Partners must sign
according to the signature requirements of the Trust or Partnership.
Corporations, partnerships, employee benefit plans and trusts must also
furnish complete and appropriate authorizing instruments (corporate resolutions,
certificate of incorporation and by-laws, employee benefit plan, partnership
agreement or trust instrument).
Payment: $_____ per share by check payable to the Company. The undersigned
encloses herewith the consideration ("Purchase Price") required to purchase the
number of shares of Stock subscribed for hereunder. Payment of the Purchase
Price is being made by delivery to the Company of a check made payable to the
Company in the amount of $______ for each share of the Stock subscribed.
The Shares are being offered for sale solely to "accredited investors" and
that term is defined in Rule 501 under the Securities Act of 1933, as amended.
IF YOU HAVE ANY QUESTIONS ABOUT THESE SUBSCRIPTION AGREEMENT OR SUBSCRIPTION
INSTRUCTIONS OR NEED ADDITIONAL COPIES, PLEASE CONTACT XXXX XXXXXXX, VICE
PRESIDENT OF PREFERRED VOICE, INC. AT (000) 000-0000. HER FAX NUMBER IS (214)
265-9663.
SUBSCRIPTION AGREEMENT
PREFERRED VOICE, INC.
Preferred Voice, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Gentlemen:
The undersigned (the "Subscriber") understands that Preferred Voice,
Inc., a Delaware corporation (the "Company"), is offering for sale shares of
Common Stock (the "Shares" or "Stock") for $_____ per Share. Subscriber
understands that the offering of the Shares (the "Offering") is being made
without registration of the Shares under the Securities Act of 1933, as amended
(the "Securities Act"), or any securities, "blue sky" or other similar laws of
any state ("State Securities Laws"). Unless otherwise defined herein,
capitalized terms shall have the same meanings as those ascribed to them in the
Memorandum.
1. Subscription. The Subscriber hereby subscribes for and agrees to
purchase the number of Shares set forth on Appendix A hereto for the
aggregate purchase price set forth thereon upon acceptance of this
Subscription Agreement by the Company. The Subscriber hereby agrees
that this Subscription Agreement shall be irrevocable and shall survive
the death, dissolution or legal incapacity of the Subscriber.
2. Payment for Shares. The undersigned has enclosed herewith the
consideration ("Purchase Price") required to purchase the number of
shares of Stock subscribed for hereunder. Payment of the Purchase Price
is being made by delivery to the Company of a check made payable to the
Company in the amount of $______ for each share of Stock subscribed.
If this subscription is not accepted or the Offering is terminated by
the Company for reasons, all documents will be returned to the
Subscriber.
3. Funds. All payments made as provided in Paragraph 2 hereof shall be
deposited by the Company in its operating accounts and shall be
available for immediate use by the Company.
4. Acceptance of Subscription. The Subscriber understands and acknowledges
that (a) the Company has the unconditional right, exercisable in its
sole and absolute discretion, to accept or reject this Subscription
Agreement, in whole or in part, (b) subscriptions need not be accepted
in the order received, (c) all subscriptions are subject to prior sale,
withdrawal, modification, or cancellation of the Offering by the
Company, (d) no subscription shall be valid unless and until accepted
by the Company, (e) this Subscription Agreement shall be deemed to be
accepted by the Company only when it is signed by an authorized officer
of the Company on behalf of the Company, (f) the Company has the
unconditional right, exercisable in its sole discretion, to accept this
Subscription Agreement, and (g) notwithstanding anything in this
Subscription Agreement to the contrary, the Company shall have no
obligation to issue the Shares to any person to whom the issuance of
the Shares would constitute a violation of the Securities Act or any
State Securities Laws. The Company will deliver certificates
representing the Shares purchased by the Subscriber to the Subscriber
promptly after closing.
5 Representations and Warranties of the Company. As of the closing, the
Company represents and warrants that:
(a) The Company is duly incorporated, validly existing and in good
standing under the laws of its state of incorporation, with
the required corporate power and authority to conduct its
business as it is currently being conducted and to own its
assets.
(b) The Shares will have been duly authorized and, when issued and
paid for, will be duly issued, fully paid and nonassessable
obligations of the Company.
6. Representations and Warranties of the Subscriber. The Subscriber hereby
represents and warrants to and covenants with the Company and to each
officer, director and agent of the Company as follows:
(a) General.
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(i) The Subscriber has all requisite authority to enter
into this Subscription Agreement and to perform all of the obligations
required to be performed by the Subscriber hereunder.
(ii) The Subscriber is the sole party in interest and is
not acquiring the Shares as an agent or otherwise for any other person.
The Subscriber is a resident of the state set forth opposite its name
on the signature page hereto and (A) if a corporation, partnership,
trust or other form of business organization, it has its principal
office within such state; (B) if an individual, he or she has his or
her principal residence in such state; and (C) if a corporation,
partnership, trust or other form of business organization which was
organized for the specific purpose of acquiring the Shares, all of the
beneficial owners are residents of such state.
(b) Information Concerning the Company.
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(i) The Subscriber has received a copy of a Confidential
Private Placement Memorandum, dated May, 2000 (the "Memorandum")
relating to the offering of the Shares and has read carefully and
understands the Memorandum.
(ii) The Subscriber (i) has received all the information
the Subscriber has deemed necessary to make an informed investment
decision with respect to an acquisition of the Shares at a reasonable
time prior to the execution of this Subscription Agreement; (ii)
understands that the Company is subject to the reporting requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and has had the opportunity to review all publicly available
filings (the "SEC Reports") made by the Company with the Securities and
Exchange Commission (the "SEC") pursuant to either the Securities Act
or the Exchange Act; (iii) has had the unrestricted opportunity to make
such investigation as the Subscriber has desired pertaining to the
Company and the acquisition of the Shares and to verify the information
that is, and has been, available to the Subscriber; and (v) has had the
opportunity to ask questions and to receive satisfactory answers from
officers of the Company and other duly authorized representatives of
the Company concerning the Company, including the business and
financial condition, properties, operations, and prospects of the
Company, and concerning the terms and conditions of the offering of the
Shares.
(iii) The Subscriber understands that, unless the
Subscriber notifies the Company in writing to the contrary before the
Closing, all the representations and warranties contained in this
Subscription Agreement will be deemed to have been reaffirmed and
confirmed as of the Closing, taking into account all information
received by the Subscriber.
(iv) The Subscriber understands that the purchase of the
Shares involves various risks, including, but not limited to, those
outlined in the Memorandum, the SEC Reports and in this Subscription
Agreement.
(v) The Subscriber is relying solely on the information
contained in the Memorandum, including any supplement thereto, and the
attachments and exhibits thereto, the SEC Reports and the answers to
the questions with respect thereto furnished to the Subscriber by the
Company or duly authorized representatives o the Company. No
representations or warranties have been made to the Subscriber by the
Company as to the tax consequences of this investment, or as to
profits, losses or cash flow that may be received or sustained as a
result of this investment, other than those contained in the
Memorandum.
(vi) All documents, records and books pertaining to a
proposed investment in the Shares which the Subscriber has requested
have been made available to the Subscriber.
(c) Status of the Subscriber.
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(i) The Subscriber is an Accredited Investor. The
Subscriber is able to bear the economic risk of this investment. The
Subscriber has had the opportunity to consult with the Subscriber's own
attorney, accountant and/or purchaser representative regarding this
Subscriber's investment in the Shares and their suitability for
purchase by the Subscriber, and to the extent necessary, the Subscriber
has retained, at Subscriber's own expense, and relied upon, appropriate
professional advice regarding the investment, tax and legal merits,
risks and consequences of this Subscription Agreement and of purchasing
and owning the Shares.
(ii) The Subscriber represents that the Subscriber is
(CHECK EACH CATEGORY OF "ACCREDITED INVESTOR" BELOW, IF ANY, WHICH IS
APPLICABLE TO THE SUBSCRIBER):
( ) (A) a 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;
( ) (B) a natural person who had 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;
( ) (C) a bank as defined in Section 3(a)(2) of the
Securities Act or a savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the Securities
Act, whether acting in its individual or fiduciary capacity; a
broker or dealer registered pursuant to Section 15 of the
Exchange Act; an insurance company as defined in Section 2(13)
of the Securities Act; an investment company registered under
the Investment Company Act of 1940, as amended (the
"Investment Company Act"), or a business development company
as defined in Section 2(a)(48) of the Investment Company Act;
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; a plan established and
maintained by a state, its political subdivisions, or any
agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees if such plan
has total assets in excess of $5,000,000; or an employee
benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974 ("ERISA"), if the investment
decision is made by a plan fiduciary, as defined in Section
3(21) of ERISA, which fiduciary is either a bank, savings and
loan association, insurance company or registered investment
adviser, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are
Accredited Investors (as listed in categories (A)-(G));
( ) (D) a private business development company as
defined in Section 202(a)(22) of the Investment Advisers Act
of 1940, as amended;
( ) (E) an organization described in Section
501(c)(3) of the Internal Revenue Code, a corporation, a
Massachusetts or similar business trust, or a partnership,
with total assets in excess of $5,000,000, and which was not
formed for the specific purpose of acquiring the Shares;
( ) (F) a trust, with total assets in excess of
$5,000,000 not formed for the specific purpose of acquiring
the Shares whose purchase is directed by a person who has
knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of an
investment in Shares;
( ) (G) an entity in which all of the equity owners
are Accredited Investors (as listed in categories (A)-(F)).
(iii) The Subscriber agrees to furnish any additional
information requested to assure compliance with applicable Federal and
State Securities Laws in connection with the purchase and sale of these
Shares.
(d) Restrictions on Transfer or Sale of the Shares.
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(i) The Subscriber is acquiring the Shares described
solely for the Subscriber's own beneficial account, for investment
purposes, and not with view to, or for resale in connection with, any
distribution of the Shares. The Subscriber understands that the offer
and the sale of the Shares has not been registered under the Securities
Act or any State Securities Law by reason of specific exemptions under
the provisions thereof which depend in part upon the investment intent
of the Subscriber and of the other representations made by the
Subscriber in this Subscription Agreement. The Subscriber understands
that the Company is relying upon the representations, covenants and
agreements contained in this Subscription Agreement (and any
supplemental information) for the purposes of determining whether this
transaction meets the requirements for such exemptions.
(ii) The Subscriber understands that the Shares are
"restricted securities" under applicable federal securities laws and
that the Securities Act and the rules of the Securities and Exchange
Commission (the "Commission") provide in substance that the Subscriber
may dispose of the Shares only pursuant to an effective registration
statement under the Securities Act or an exemption therefrom. The
Subscriber understands that the Subscriber may not at any time demand
the purchase by the Company of the Subscriber's Shares.
(iii) The Subscriber agrees: (A) that the Subscriber will
not sell, assign, pledge, give, transfer or otherwise dispose of the
Shares or any interest therein, or make any offer or attempt to do any
of the foregoing, except pursuant to a registration of the Shares under
the Securities Act and all applicable State Securities Laws or in a
transaction which is exempt from the registration provisions of the
Securities Act and all applicable State Securities Laws; (B) that the
Company and any transfer agent for the Shares shall not be required to
give effect to any purported transfer of any of the Shares except upon
compliance with the foregoing restrictions; and (C) that a legend in
substantially the following form will be placed on the certificates
representing the Shares:
"The Shares represented by this document have not been
registered under any securities laws and the transferability of the
Shares therefore is restricted. The Shares may not be sold, assigned
or transferred, nor will any assignee, vendee, transferee, or
endorsee hereof be recognized as having an interest in such Shares by
the Company for any purpose, unless (i) a registration statement
under the Securities Act of 1933, as amended, with respect to such
Shares shall then be in effect and such transfer has been qualified
under applicable state securities laws, or unless (ii) the
availability of an exemption from registration and qualification
shall be established to the satisfaction of counsel for the Company."
(iv) The Subscriber agrees that Subscriber will not sell,
assign, pledge, gift or transfer or otherwise dispose of the Shares or any
interest therein, to the extent restricted by the Certificate of
Incorporation of the Company .
(v) The Subscriber has not offered or sold any portion
of the subscribed for Shares and has no present intention of dividing such
Shares with others or of reselling or otherwise disposing of any portion of
such Shares either currently or after the passage of a fixed or
determinable period of time or upon the occurrence on nonoccurrence of any
predetermined event or circumstance.
7. Survival and Indemnification. All representations, warranties and
covenants contained in this Agreement and the indemnification contained
in this Paragraph 8 shall survive (i) the acceptance of the
Subscription Agreement by the Company, (ii) changes in the
transactions, documents and instruments described in the Memorandum
which are not material or which are to the benefit of the Subscriber,
and (iii) the death or disability of the Subscriber. The Subscriber
acknowledges the meaning and legal consequences of the representations,
warranties and covenants in determining the Subscriber's qualification
and suitability to purchase the Shares. The Subscriber hereby agrees to
indemnify, defend and hold harmless the Company, and its officers,
directors, employees, agents and controlling persons, from and against
any and all losses, claims, damages, liabilities, expenses (including
attorneys' fees and disbursements), judgment or amounts paid in
settlement of actions arising out of or resulting from the untruth or
any representation herein or the breach of any warranty or covenant
herein. Notwithstanding the foregoing, however, no representation,
warranty, covenant or acknowledgment made herein by the Subscriber
shall in any manner be deemed to constitute a waiver of any rights
granted to it under the Securities Act or State Securities laws.
8. Conditions to Obligations of the Company. The obligations of the
Company to sell the number of Shares specified herein is subject to the
condition that the representations and warranties of the Subscriber
contained in this Subscription Agreement hereof shall be true and
correct on and as of the Closing in all respects with the same effect
as though such representations and warranties had been made on and as
of the Closing.
9. Notices. All notices and other communications provided for herein shall
be in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail, return receipt
requested, postage prepaid, telex, telecopier or overnight air courier
guaranteeing next day delivery:
(a) if to the Company, to it at the following address:
Preferred Voice, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxxxxx
(b) if to the Subscriber, to the address set forth on the
signature page hereto, or at such other address as either
party shall have specified by notice in writing to the other.
All notice and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the
mail, postage prepaid, if mailed; when received if telexed or
telecopied; and the next business day after timely delivery to
the courier, if sent by overnight air courier guaranteeing
next day delivery.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or
not the addressee receives it.
10. Notification of Changes. The Subscriber agrees and covenants to notify
the Company immediately upon the occurrence of any event prior to the
Closing which would cause any representation, warranty, covenant or
other statement contained in this Subscription Agreement to be false or
incorrect or of any change in any statement made herein occurring prior
to the Closing.
11. Assignability. This Subscription Agreement is not assignable by the
Subscriber, and may not be modified, waived or terminated except by an
instrument in writing signed by the party against whom enforcement of
such modifications, waiver or termination is sought.
12. Binding Effect. Except as otherwise provided herein, this Subscription
Agreement shall be binding upon and inure to the benefit of the parties
and their heirs, executors, administrators, successors, legal
representatives and assigns, and the agreements, representations,
warranties and acknowledgments contained herein shall be deemed to be
made by and binding upon such heirs, executors, administrators,
successors, legal representatives and assigns. If the Subscriber is
more than one person, the obligation of the Subscriber shall be joint
and several and the agreements, representations, warranties and
acknowledgments contained herein shall be deemed to be made by and be
binding upon each such person and his heirs, executors, administrators
and successors.
13. Obligations Irrevocable. The obligations of the Subscriber shall be
irrevocable, except with the consent of the Company, until the Closing
or earlier termination of the Offering.
