EXHIBIT 4 - INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS
EXHIBIT A
XXXXXXXX.XXX, INC.
SUBSCRIPTION AGREEMENT
Name of Subscriber: ____________________________
THE SECURITIES OF XXXXXXXX.XXX, INC. BEING SOLD PURSUANT TO THIS MEMORANDUM
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE "BLUE SKY" OR SECURITIES LAWS. THE SHARES CANNOT BE SOLD,
TRANSFERRED, ASSIGNED, OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH
APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
To be fully completed by Subscriber
XxxxXxxx.xxx, Inc., a Delaware corporation ("the Company"), is conducting a
private offering on a "best efforts" basis, of up to 1,600,000 shares of
Common Stock (the "Shares") pursuant to exemptions from registration under
Sections 4(2) and 4(6) of the Securities Act of 1933, as amended (the "1933
Act"), and Rule 506 of Regulation D adopted thereunder, as described in this
Agreement and the Company's Confidential Offering Memorandum dated November
20, 1998, attached hereto (the "Memorandum").
If and when accepted by the Company, this Subscription Agreement, when
executed below, shall constitute a contract to purchase Shares in the amount
set forth on the signature page of this Agreement.
Each part of this Subscription Agreement must be completed by the Investor
and by his or her execution below, the Investor acknowledges that he or she
understands that the Company is relying upon the accuracy and completeness
hereof in complying with its obligations under applicable securities laws.
One of the purposes of this Subscription Agreement is to assure the Company
that each prospective Investor is an Accredited Investor as that term is
defined in Rule 501 of Regulation D.
PLEASE READ AND COMPLETE EACH RESPONSE:
1. I have received and read the Memorandum and the Exhibits thereto, and
am familiar with the terms and provisions thereof. I acknowledge that I have
not relied upon any information which is not set forth in the Memorandum or
any document included as an Exhibit thereto or provided to me by the Company
in response to a request for such documents. Other than the Memorandum and
Exhibits thereto, I have relied upon the following documents requested
from the Company and provided to me for purposes of making my decision to
invest in the Shares:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________.
_________
(Initial)
2. I have such knowledge and experience in business and financial matters
that I am capable of evaluating the Company and the proposed activities
thereof, and the risks and merits of this prospective investment.
_________
(Initial)
3. (a) My net worth, either individually or jointly with my spouse, is:
(Please initial the appropriate box below)
Below $50,000 _____
$50,000 to $75,000 _____
$75,000 to $149,999 _____
$150,000 to $224,999 _____
$225,000 to $499,999 _____
$500,000 to $999,999 _____
$1,000,000 or more _____
(b) During each of the last 2 years, I have had and reasonably expect in
the current year to have, an income in excess of $200,000 (not including
any income attributable to my spouse).
_____YES _____ NO
(i) During 1996, I had annual gross income of:
(Please initial the appropriate box below)
Below $50,000 _____
$50,000 to $99,999 _____
$100,000 to $200,000 _____
$200,000 or more _____
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(ii) During 1997, I had annual gross income of:
(Please initial the appropriate box below)
Below $50,000 _____
$50,000 to $99,999 _____
$100,000 to $200,000 _____
$200,000 or more _____
(iii) During 1998, I expect to have annual gross income of:
(Please initial the appropriate box below)
Below $50,000 _____
$50,000 to $99,999 _____
$100,000 to $200,000 _____
$200,000 or more _____
(c) During each of the last 2 years, my spouse and I together have had and
reasonably expect in the current year to have, annual gross income in excess
of $300,000.
_____YES _____ NO
(i) During 1996, we had annual gross income of:
(Please initial the appropriate box below)
Below $50,000 _____
$50,000 to $149,999 _____
$150,000 to $299,999 _____
$300,000 or more _____
(ii) During 1997, we had annual gross income of:
(Please initial the appropriate box below)
Below $50,000 _____
$50,000 to $149,999 _____
$150,000 to $299,999 _____
$300,000 or more _____
(iii) During 1998, we expect to have annual gross income of:
(Please initial the appropriate box below)
Below $50,000 _____
$50,000 to $149,999 _____
$150,000 to $299,999 _____
$300,000 or more _____
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4. I have a pre-existing personal or business relationship with the
Company or one or more of the Officers, Directors, or controlling persons
of the Company, and as a result of such relationship, I am capable of
protecting my own interests in connection with my proposed investment.
_____YES _____ NO
If yes, please explain this relationship.
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
4. I have previously been advised that I would have an opportunity to
review all the pertinent facts concerning the Company and to obtain any
additional information which I might request, to the extent possessed or
obtainable without unreasonable effort and expense, in order to verify the
accuracy of information contained in the Memorandum.
_________
(Initial)
6. (a) I would like the Company to contact me in person or by telephone
before accepting my subscription so that I may further avail myself of the
opportunity for additional information and the opportunity to ask additional
questions of the Company (If "Yes", the Company will contact you).
_____YES _____ NO
(b) If "Yes", please attach your written statement hereto setting further
the general nature of the information desired and then state Business Phone
No. (____) _________, and Residence Phone No. (____) __________, where the
Company can contact you immediately.
7. I understand that the Shares have not been registered under the
Securities Act of 1933, as amended (the "Act"), in reliance upon the
exemptions from the registration requirements under the Act pursuant to
Sections 4(2) and 4(6) of the Act, and Rule 506 of Regulation D adopted
thereunder, and that the Shares have not been registered under any blue
sky or state securities laws; and, therefore, that I must bear the economic
risk of the investment for an indefinite period
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of time since the Shares cannot be sold, transferred or assigned to any
person or entity without compliance with the provisions of the Act and
applicable state blue sky or securities laws.
_________
(Initial)
8. I have adequate means of providing for my current needs and personal
contingencies and have no need for liquidity in this investment in order
to meet such needs.
_________
(Initial)
9. I represent that:
(Initialing below (h) of this Section is an acknowledgment of all
representations contained in this Section (9).)
(a) I understand that the Shares being purchased hereunder have not been
registered under the Act or any state securities laws.
(b) I understand that I cannot sell or otherwise transfer the Shares
being purchased hereunder unless they are registered under the Act and
applicable state securities laws, or exemptions from such registration
are available at the time of the sale.
(c) I understand that I must bear the economic risk of the investment
in the Shares for an indefinite period of time because, as described in
Paragraph 9(a) above, the Shares have not been registered under the Act
or any state securities laws.
(d) I understand that the Company has a limited operating history and
that an investment in the Shares is speculative in nature and involves a
substantial degree of risk. I understand that I may lose my entire
investment.
(e) I will not sell the Shares being purchased hereunder without
registration under the Act and applicable state securities laws or unless
an exemption from such registration requirements is available. I
understand that the burden will be upon me to prove the availability of
such an exemption.
(f) I understand that the Company will restrict the transfer of the
Shares in accordance with the foregoing representations.
(g) I agree that all certificates representing the Shares of the
Company will contain or be endorsed with the following (or a
substantially equivalent) legends:
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The securities represented by this Certificate have not been
registered under the Securities Act of 1933 (the "Act") and are
"restricted securities" as that term is defined in Rule 144 under
the Act. The securities may not be offered for sale, sold or
otherwise transferred except pursuant to an effective registration
statement under the Act or pursuant to an exemption from registration
under the Act, the availability of which is to be established to the
satisfaction of the Company.
(h) I understand that there is presently only a limited public market for
the shares of Common Stock, and there is no assurance that such public
market for the shares will continue.
_________
(Initial)
10. I represent that I am the sole party in interest as to my subscription
and am acquiring the Shares solely for investment for my own account and have
no present agreement, understanding, arrangement, or intent to subdivide,
sell, assign, transfer or otherwise dispose of all or any part of my Shares
to any other person.
_________
(Initial)
11. I represent that I have not distributed the Memorandum (or any
other documents provided to me by the Company) to anyone other than my
personal advisors (e.g., investment advisors, attorney and/or accountant),
and that I have not allowed any other person to review the Memorandum.
_________
(Initial)
12. If an individual, I am over 21 years of age and I am a resident of
the United States.
_________
(Initial)
13. If the prospective investor is a partnership, joint venture,
corporation, trust, or other entity not a natural person, I represent
and warrant that such entity was not formed for purposes of investing in
the Shares.
_________
(Initial)
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14. I am not affiliated with an NASD member broker/dealer firm as an
employee, partner or shareholder or as a relative or member of the same
household of any employee, partner or shareholder of an NASD member
broker/dealer firm, except as described below:
I am not affiliated with an NASD member. _________ (Initial)
or
I have the following affiliations to NASD member(s):
(describe, including name and address of firm, individual members and
nature of affiliation(s)):
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
15. I recognize that the sale of the Shares to me will be based upon
my representations and warranties set forth hereinabove and the statements
made by me herein and I hereby agree to indemnify the Company and each of
its Officers, Directors, controlling persons, attorneys and agents, and to
hold each of them harmless from and against any and all loss, damage,
liability or expense, including costs and reasonable attorney's fees, to
which they may be put or which they may incur by reason of, or in connection
with, any misrepresentation made by me in this Subscription Agreement, any
breach by me of my warranties and/or failure by me to fulfill any of my
covenants or agreements set forth herein or arising out of the sale or
distribution of any Shares by me in violation of the Act, or any other
applicable securities or "blue sky" laws.
_________
(Initial)
IN WITNESS WHEREOF, subject to acceptance by the Company, the undersigned has
completed this Subscription Agreement to evidence his or her subscription to
Shares of XxxxXxxx.xxx, Inc. as offered by the Confidential Offering
Memorandum dated November ___, 1998, as of this ____ day of ______________,
199__.
Amount of Commitment
(Minimum Purchase: 20,000 Shares ($25,000))
$
for Shares
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Checks should be made payable to XxxxXxxx.xxx, Inc.
__________________________________
Name (Please Print)
__________________________________
(Signature)
Residence Address: Telephone Numbers:
(include Zip Code) (include Area Codes)
___________________________ Business: (___) ______________
___________________________ Residence: (___) _____________
Mailing Address: S.S. Number: ________________
(if different)
____________________________ Date of Birth: _______________
____________________________
Citizenship: _______________
ACCEPTED FOR __________ Shares
this ____ day of _____________,199_.
XXXXXXXX.XXX, INC.
By__________________________
Xxxxx Xxxxx
Chief Executive Officer
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