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EXHIBIT 3(iii)
SUBSCRIPTION AGREEMENT
Enviro-Clean of America, Inc.
c/o Kandel & Son, Inc.
000 Xxxx Xxx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, President
Gentlemen:
1. Pursuant to the terms of the offer made by Enviro-Clean of America, Inc.
(the "Company"), the undersigned hereby tenders this subscription and applies
for the purchase of One Hundred and Seventy-Five Thousand ($175,000) stated
amount of the Company's Series E Preferred Stock (the "Series E Shares") set
forth on the signature page hereof. The Series E Shares are being sold at a
purchase price of Two Dollars and Fifty Cents ($2.50) per Series E Share, are
redeemable at the option of the Holder at any time after two (2) years from
their date of issuance and are convertible into shares of common stock of
various issuers, as set forth in the term sheet annexed as Exhibit A to this
Subscription Agreement. The Series E Shares and the shares into which they are
convertible are sometimes referred to herein as the "Securities." Payment for
the Series E Shares may be made by wire transfer to:
XXXXXX XXXXXXXXXX & XXXXXXXX, LLP
Bank of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ABA Routing No. 000000000
Account No. 0000000000
Reference: EVCL
2. Representations and Warranties. In order to induce the Company to
accept this subscription, the undersigned hereby represents and warrants to,
and covenants with, the Company as follows:
(i) The undersigned has had a reasonable opportunity to ask questions
of and receive answers from the Company concerning the Company and the
offering of the Securities, and all such questions, if any, have been
answered to the full satisfaction of the undersigned;
(ii) The undersigned has such knowledge and expertise in financial and
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business matters that the undersigned is capable of evaluating the merits and
risks involved in an investment in the Securities;
(iii) The Confidential Purchaser Questionnaire being delivered by the
undersigned to the Company simultaneously herewith is true, complete and
correct in all material respects; and the undersigned understands that the
Company has determined that the exemption from the registration provisions of
the Securities Act of 1933, as amended (the "Act"), which is based upon
non-public offerings are applicable to the offer and sale of the Securities,
based, in part, upon the representations, warranties and agreements made by the
undersigned herein and in the Confidential Purchaser Questionnaire referred to
above;
(iv) Except for the questions and responses referred to in paragraph (i)
above, no representations or warranties have been made to the undersigned by
the Company or any agent, employee or affiliate of the Company and in entering
into this transaction the undersigned is not relying upon any information,
other than the results of independent investigation by the undersigned;
(v) The undersigned understands that (A) the Securities have not been
registered under the Act or the securities laws of any state, based upon an
exemption from such registration requirements for non-public offerings pursuant
to Sections 4(2) and 4(6) of the Act and Regulation D under the Act; (B) the
Securities are and will be "restricted securities", as said term is defined in
Rule 144 of the Rules and Regulations promulgated under the Act; (C) the
Securities may not be sold or otherwise transferred unless they have been first
registered under the Act and all applicable state securities laws, or unless
exemptions from such registration provisions are available with respect to said
resale or transfer, (D) the Series E Shares bear and the certificates for the
shares into which they are convertible may bear a legend to the effect that the
transfer of the securities represented thereby is subject to the provisions
hereof; and (E) stop transfer instructions may have been placed with the
transfer agent for the shares comprising the Securities. Notwithstanding
anything in this subsection (v) to the contrary, the Company shall use its
reasonable best efforts to ensure that all shares into which the Series E Shares
are convertible are eligible for resale under Rule 144;
(vi) The undersigned is acquiring the Securities solely for the account of
the undersigned, for investment purposes only, and not with a view towards the
resale or distribution thereof;
(vii) The undersigned will not sell or otherwise transfer any of the
Securities, or any interest therein, unless and until (i) said Securities shall
have first been registered under the Act and all applicable state securities
laws; or (ii) the undersigned shall have first delivered to the Company a
written opinion of counsel
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(which counsel and opinion (in form and substance) shall be reasonably
satisfactory to the Company), to the effect that the proposed sale or
transfer is exempt from the registration provisions of the Act and all
applicable state securities laws;
(viii) The undersigned has full power and authority to execute and
deliver this Subscription Agreement and to perform the obligations of the
undersigned hereunder; and this Subscription Agreement is a legally binding
obligation of the undersigned in accordance with its terms;
(ix) The undersigned is an "accredited investor," such term is defined
in Regulation D of the Rules and Regulations promulgated under the Act and
as set forth in the Confidential Purchaser Questionnaire; and
(x) The undersigned has carefully reviewed the jurisdictional notices
listed below and agrees to abide by any restrictions contained therein
applicable to the undersigned.
JURISDICTIONAL NOTICES
FOR RESIDENTS OF ALL STATES:
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY
STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND SUCH LAWS PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY
AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE
MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
NEW YORK RESIDENTS:
THE MEMORANDUM HAS NOT BEEN FILED WITH OR REVIEWED BY THE
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ATTORNEY GENERAL OF THE STATE OF NEW YORK PRIOR TO ITS ISSUANCE AND USE. THE
ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED THE
MERITS OF THIS OFFERING. ANY REPRESENTATIONS TO THE CONTRARY ARE UNLAWFUL.
* * *
3. The undersigned understands that this subscription is not binding upon
the Company until the Company accepts it, which acceptance is at the sole
discretion of the Company and it to be evidenced by the Company's execution of
this Subscription Agreement where indicated. This Subscription Agreement shall
be null and void if the Company does not accept it as aforesaid.
4. The undersigned understands that the Company may, in its sole
discretion, reject this subscription, in whole or in part, and/or reduce this
subscription in any amount and to any extent, whether or not pro rata
reductions are made of any other investor's subscription.
5. The undersigned agrees to indemnify the Company and hold it harmless
from and against any and all losses, damages, liabilities, costs and expenses
which it may sustain or incur in connection with breach by the undersigned of
any representation, warranty or covenant made by the undersigned.
6. Neither this Subscription Agreement nor any of the rights of the
undersigned hereunder may be transferred or assigned by the undersigned.
7. Except as provided in paragraphs 3 and 4 above, this Subscription
Agreement (i) may only be modified by a written instrument executed by the
undersigned and the Company; (ii) sets forth the entire agreement of the
undersigned and the Company with respect to the subject matter hereof; (iii)
shall be governed by the laws of the State of New York applicable to contracts
made and to be wholly performed therein; and (iv) shall inure to the benefit
of, and be binding upon the Company and the undersigned and their respective
heirs, legal representatives, successors and permitted assigns.
8. Unless the context otherwise requires, all personal pronouns used in
this Subscription Agreement, whether in the masculine, feminine or neuter
gender, shall include all other genders.
9. All notices or other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or mailed by
certified or registered mail, return receipt requested, postage prepaid, as
follows: if to the undersigned, to the address set forth in the Confidential
Purchaser Questionnaire referred to above; and if to the Company, to Enviro-
Clean of America, Inc., c/o Kandel & Son, Inc., 000 Xxxx Xxx., Xxxxxxxxxx, XX
00000, Attention: Xxxxxxx Xxxxxx, President, or to such other address or
facsimile number as the Company or the undersigned shall have designated to the
other by like notice.
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SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this ___ day of _________ 199__.
Organization Signature: Individual Signature:
/s/ XXXXXX XXXX
----------------------------- -----------------------------
Print name of Organization
By:
-------------------------- -----------------------------
Name: Signature(s)
Title:
-----------------------------
Print Name(s)
-----------------------------
Print Name(s)
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(ALL SUBSCRIBERS SHOULD PLEASE PRINT INFORMATION BELOW EXACTLY AS YOU
WISH IT TO APPEAR IN THE RECORDS OF THE RECORDS OF THE COMPANY)
/s/ XXXXXX XXXX 000 00 0000
----------------------------------------- ---------------------------------
Name and capacity in which subscription Social Security Number of
is made -- see below for particular Individual or other Taxpayer
requirements I.D. Number
Address: Address for notices if different:
/s/ XXXXXXX XXXX
----------------------------------------- ---------------------------------
Xxxxxx xxx Xxxxxx Xxxxxx xxx Xxxxxx
Xxxxxxxxxx XX 00000
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City State Zip Code City State Zip Code
Please check the box to indicate form of ownership (if applicable):
TENANTS-IN-COMMON [ ] JOINT TENANTS WITH RIGHT OF SURVIVORSHIP [ ]
(Both Parties must sign above) (Both Parties must sign above)
The foregoing subscription is hereby accepted by ENVIRO-CLEAN OF
AMERICA, INC. for Series E Shares in the aggregate Stated Amount of $175,000
this ___ day of ________ 1998.
ENVIRO-CLEAN OF AMERICA, INC.
By:
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Xxxxxxx Xxxxxx
President
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