EXHIBIT 4.7
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
FOR WARRANTS EXERCISABLE FOR COMMON SHARES
This Offshore Securities Subscription Agreement (the "Agreement")
is executed in reliance upon the transaction exemption afforded by
Regulation S ("Regulation S") under the Securities Act of 1933, as
amended (the "Securities Act'), as promulgated by the Securities and
Exchange Commission (the "SEC").
This Agreement has been executed by the undersigned in connection
with the issuance of warrants ("Warrants") exercisable into shares of
common stock ("Common Stock") of
XXXXXX XXXXXX HOLDING CORPORATION
= = = = = = = = = = = = = = = = = = = = = = = = = = =
00000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
National Association of Securities Automated Quotation System Symbol
("CRTM"), a corporation organized under the laws of Texas, United
States of America (the "Issuer").
The shares of Common Stock of Issuer subscribed for hereunder are
sometimes referred to herein as the "Shares." Capitalized terms as
used herein shall have the meanings assigned thereto.
The undersigned:
NAME: ___________________
ADDRESS: __________________
a non "U.S. person" (the "Subscriber"),
hereby represents and warrants to, and agrees with, the Issuer as
follows:
1. The Offering.
a. The Shares. The undersigned hereby subscribes for Warrants
exercisable, in whole or in part, into ____________ shares of
Common Stock at the aggregate subscription price of $1.25 per
Share payable in United States Dollars, representing a total
consideration of $____________________ (the "Subscription
Proceeds").
b. Form of Payment. Subscriber shall pay the Subscription
Proceeds due upon exercise of the Warrants by delivering good
funds by wire transfer in United States Dollars on or before March
31, 1997 into the escrow account as follows:
(Escrow Agent)
Acct. No.:________________ (the "Offering Escrow Account")
2. Subscriber Representations; Access to Information; Independent
Investigation.
a. Offshore Transaction. Subscriber represents and warrants to
Issuer as follows:
(i) Neither Subscriber nor any person or entity for whom
Subscriber is acting as fiduciary is a U. S. person. A U.S.
person means any one of the following:
(1) any natural person resident in the United States of
America;
(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:
(A) organized or incorporated under the laws of
any foreign jurisdiction; and
(B) 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) under the Securities
Act) who are not natural persons, estates or
trusts.
(ii) At the time the buy order was originated,
Subscriber was outside the United States and is outside
of the United States as of the date of the execution and
delivery of this Agreement. No offer to purchase Shares
was made in the United States.
(iii) Subscriber is purchasing the Shares for its own
account or for the account of beneficiaries for whom
Subscriber has full investment discretion with respect
to the Shares and whom Subscriber has full authority to
bind so that each such beneficiary is bound hereby as if
such beneficiary were a direct Subscriber hereunder and
all representations, warranties and agreements herein
were made directly by such beneficiary. Subscriber is
not purchasing the Shares on behalf of any U.S. person
and the sale has not been prearranged with a purchaser
in the United States.
(iv) Each distributor participating in the offering of
the Shares, if any, has agreed in writing that all
offers and sales of the Shares prior to the expiration
of a period commencing on the date of the Closing of the
purchase and sale of the Shares subscribed for hereunder
and ending 40 days thereafter shall only be made (A) in
compliance with the safe harbor contained in Regulation
S; (B) pursuant to registration of the Shares under the
Securities Act; or (C) pursuant to an exemption from
registration.
(v) Subscriber represents, warrants and hereby agrees
that all offers and sales of the Shares shall only be
made (A) in compliance with the safe harbor contained in
Regulation S; (B) pursuant to a registration of
securities under the Securities Act; or (C) pursuant to
an exemption from such registration.
(vi) The Offering Documents (as defined herein)
received by Subscriber include statements to the effect
that the Shares have not been registered under the
Securities Act and may not be offered or sold in the
United States, to U.S. persons or for the account or
benefit of a U.S. person (other than distributors as
defined in Regulation S) unless the Shares are
registered under the Securities Act or an exemption from
the registration requirements is available.
(vii) Subscriber acknowledges that the purchase of the
Shares involves a high degree of risk and acknowledges
further that it can bear the economic risk of the
purchase of such Shares, including the total loss of its
investment. Subscriber acknowledges that it has
obtained the advice of competent legal counsel in its
domicile jurisdiction that it is qualified under the
laws of its domicile to purchase the Shares and that the
offer and sale of such Shares will not violate the laws
of its domicile jurisdiction.
(viii) Subscriber understands that the Shares are being
offered and sold to it in reliance on a specific
exemption from the registration requirements of federal
and state securities laws and that Issuer is relying
upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and
understandings of Subscriber set forth herein to
determine the applicability of such exemptions and the
suitability of Subscriber to acquire the Shares.
(ix) Subscriber is sufficiently experienced in
financial and business matters as to be capable of
evaluating the merits and risks of its investments and
to make an informed decision relating thereto.
(x) In evaluating its investment, Subscriber has
consulted its own investment and/or legal and/or tax
advisors.
(xi) Subscriber understands that, in he view of the
SEC, the statutory basis for the exemption claimed for
this transaction would not be present if the offering of
the Shares, although in technical compliance with
Regulation S, is part of a plan or scheme to evade the
registration provision of the Securities Act.
Subscriber is acquiring the Shares for investment
proposes and has no present intention to sell such
Shares in the United States, to a U.S. person or for the
account or benefit of a U.S. person. Subscriber hereby
confirms that the purpose of including the Subscriber
Representation Letter (Appendix "A" hereto) to
facilitate the transfer of the certificates representing
the Shares into street name is to enable Subscriber to
comply with the requirements of certain offshore
portfolio management regulations and the security
requirements of offshore lenders for margin loans.
(xii) Subscriber is not an underwriter of, or dealer
in, the Shares. Subscriber is not participating,
pursuant to a contractual agreement, in the distribution
of the Shares.
(xiii) Subscriber represents and warrants that neither
it nor any of its affiliates will directly or indirectly
maintain any short position in Shares of Issuer during
the forty day (40) transaction restriction period.
If Subscriber is purchasing the Shares subscribed for hereby in
representative or fiduciary capacity, the representations and
warranties in this Agreement shall be deemed to have been made on
behalf of the person or persons for whom Subscriber is so purchasing.
The foregoing representations and warranties are true and accurate
as of the date hereof, shall be true and accurate as of the date of the
acceptance by Issuer of Subscriber's subscription and shall survive
thereafter. If Subscriber has knowledge, prior to the acceptance of
this Agreement by Issuer, that any such representation and warranty
shall not be true and accurate in any respect then Subscriber, prior to
such acceptance, will give written notice of such fact to Issuer
specifying which representation and warranty is not true and accurate
and the reasons therefor.
b. Current Public Information. Subscriber acknowledges that he,
she or it has been furnished with or has acquired copies of
Issuer's most recent Annual Report on Form 10-K and any form 10-Q
filed thereafter (collectively, the "SEC Filings") and other
publicly available documents, together with attachments thereto,
as same may be supplemented (together with the SEC Filings, the
"Offering Documents"). Subscriber has reviewed the Offering
Documents.
c. Independent Investigation: Access. Subscriber acknowledges
that, in making the decision to purchase the Shares subscribed
for, Subscriber has relied upon independent investigations made by
it and its purchase representatives, if any, and Subscriber and
such representatives, if any, have, prior to any sale to
Subscriber, been given access and the opportunity to examine all
material books and records of the Issuer, all material contracts
and documents relating to this offering of Shares and an
opportunity to ask questions of, and to receive answers from,
Issuer or any person acting on its behalf concerning the terms and
conditions of this offering of Shares. Subscriber and its
advisors, if any, have been furnished with access to all publicly
available materials relating to the business, finances and
operation of the Issuer and materials relating to the offer and
sale of the Shares which have been requested. Subscriber and its
advisors, if any, have received complete satisfactory answers to
any such inquiries.
d. No Government Recommendation or Approval. Subscriber
understands that no federal or state agency has made or will make
any finding or determination relating to the fairness for public
investment in the Shares or has passed or made, or will pass on or
make, any recommendation or endorsement of the Shares.
e. Entity Purchases. If Subscriber is a partnership,
corporation or trust, the person executing this Agreement on its
behalf represents and warrants that:
(i) He or she has made due inquiry to determine the
truthfulness of the representations and warranties made
pursuant to this Agreement.
(ii) He or she is duly authorized (if the undersigned is a
trust, by the trust agreement) to make this investment and to
enter into and execute this Agreement on behalf of such
entity.
3. Issuer Representations.
Issuer represents and warrants to the Subscriber as follows:
a. Reporting Company Status. Issuer is a reporting issuer as
defined by Rule 902 of Regulations S. Issuer is in full
compliance with all reporting obligations under Sections 13 or
15(d) of the Securities Exchange Act of 1934, as amended.
b. Offshore Transaction. Issuer has not offered these Shares to
any person in the United States or to any U.S. person or for the
account or benefit of any U.S. person. At the time the buy order
was originated, Issuer and/or its agent reasonably believed that
Subscriber was outside of the United States and was not a U.S.
person. Issuer and/or its agent reasonably believe that the
transaction has not been prearranged with a Subscriber in the
United States.
c. No Directed Selling Efforts. In regard to this transaction,
Issuer has not conducted any "directed selling efforts" as that
term is defined in Rule 902 of Regulation S nor has Issuer
conducted any general solicitation relating to the offer and sale
of the within securities to U.S. persons residing within the
United States or elsewhere.
d. The Shares. The Shares, when issued and delivered, will be
duly and validly authorized and issued, fully paid and non-
assessable and will not subject the holders thereof to any
liability solely by reason of being such holders.
e. Subscription Agreement. This Agreement, when acknowledged by
the signature of an officer of Issuer, has been duly authorized,
validly executed and delivered on behalf of Issuer and is a valid
and binding agreement in accordance with its terms.
f. Non-contravention. Except as otherwise disclosed by the
Issuer, the execution and delivery of this Agreement, the
consummation of the issuance of the Shares and the transactions
contemplated hereunder do not and will not conflict with or result
in a breach by Issuer of any of the terms or provisions of, or
constitute a default under, the certificate of incorporation or by-
laws of Issuer (or any equivalent documents thereto) or any
indenture, mortgage, deed of trust or other material agreement or
instrument to which Issuer is a party or by which it or any of its
properties or assets are bound or any existing applicable law,
rule or regulation or any applicable decrees, judgments or orders
of any court, federal or state regulatory body, administrative
agency or other governmental body having jurisdictions over Issuer
or any of its properties or assets.
g. Securities Law Compliance. With respect to the Company's
actions, the offer and the sale of Shares shall conform in all
respects with the requirements of Regulation S and with the
requirements of all other published rules and regulations of the
SEC currently in effect relating to "private offerings" to non-
residents of the United States of the type contemplated herein.
Neither the offer, sale of delivery of the Shares in conformity
with the terms hereof will violate Section 5 of the Securities
Act, as presently in effect.
4. Expiration of Restricted Period. The transaction restriction in
connection with this offshore offer and sale restricts the Subscriber
from offering and selling to U.S. persons or for the account or benefit
of a U.S. person for a forty (40) day period. Rule 903(c)(2) governs
the forty (40) day transaction restriction. In the event that multiple
subscriptions are accepted by Issuer, each separate subscription
agreement shall be deemed to be a separate offering under Regulation S
and the forty (40) day restriction period shall begin for each
transaction separately on the date payment is made to Issuer for that
specific transaction. Title to the Shares may be transferred by
Subscriber to other non-United States persons or entities in accordance
with Regulation S.
5. Exemption: Reliance on Representation. Subscriber understands
that the offer and sale of the Shares is not being registered under the
Securities Act. Issuer is relying on the rules governing offers and
sales made outside the United States pursuant to Regulation S. Rules
901 though 903 of Regulation S govern this transaction.
6. Transfer Agent Instructions.
a. Legends on Certificates. The transaction restriction in
connection with this offshore offer and sale restricts Subscriber
from offering and selling to U.S. persons, or for the account or
benefit of a U.S. person, for a forty (40) day period. The rules
do not require the placement of such a restrictive legend on the
share certificate and the transfer agent is hereby instructed to
see that such legend is attached to the share certificate by means
of stapling. Such legend shall be in the precise form of Appendix
"B" hereto. Rule 903(c)(2) governs the forty day transaction
restriction.
b. Subscriber Representation Letter. Issuer agrees to accept a
Subscriber Representation Letter from the Subscriber, or assigns,
in form of Appendix "A" hereto as sole and sufficient evidence
that Subscriber, or assigns, has complied with applicable
securities laws and upon receipt of such a letter shall promptly
instruct its transfer agent to transfer the Shares into "Street
Name", if so requested by Subscriber, as expeditiously as
practical after receipt of the certificates and the Subscriber
Representation Letter; provided, Issuer shall not be required to
deliver such instructions if it knows, or reasonably believes, any
of the representations made in the Subscriber Representation
Letter are false.
7. Transfer Agent Instructions. Issuer's transfer agent will be
instructed to issue one or more share certificates representing Shares
in the names of qualified purchasers to be specified prior to Closing.
All of the Shares so issued by the transfer agent will be issued
pursuant to Regulation S. Issuer warrants further that no instructions
have been given to the transfer agent and that these Shares shall be
freely transferable on the books and records of Issuer subject to
compliance with applicable securities laws and the terms of this
Agreement.
8. Closing Date and Escrow Agent. The date of the issuance of the
Shares in the name of Subscriber (the "Closing") shall be the date upon
which Subscriber exercises the Warrants, or such mutually agreed date
thereafter as the parties shall determine. Closing shall be
effectuated following delivery of funds to ____________ as escrow agent
(the "Escrow Agent"), to the account designated in Section 1c hereof.
Subscriber instructs the Escrow Agent and gives the Escrow Agent its
good and sufficient authority to release funds from the Offering Escrow
Account to Issuer and all other necessary parties including, without
limitation, the payment of all placement agent fees and commissions,
facilitation fees in connection with the purchase of Shares and
expenses of the offering of Shares contemplated by the Offering
Documents. Subscriber agrees that the Escrow Agent, in its capacity as
Escrow Agent, has no liability as a result of any fraudulent or
unlawful conduct of any other party and agrees to hold the Escrow Agent
harmless.
9. Conditions to Issuer's Obligation to Sell. Issuer reserves the
right, in its complete discretion, to reject this Agreement prior to
execution by Issuer. Subscriber understands that Issuer's obligation
to sell the Shares subscribed for hereunder is conditioned upon:
a. the receipt and acceptance by Issuer of this Agreement for all
of the Warrants and Shares as evidenced by execution of this
Agreement by the President, any Vice President or any Director of
Issuer. The acceptance of funds by Issuer shall be deemed to be
constructive acceptance of this Agreement. Subscriber understands
that this Agreement is irrevocable; and
b. delivery to the Escrow Agent by Subscriber of good funds, as
payment in full for the purchase of the Shares subscribed for, all
fees and commissions.
10. Conditions to Subscriber's Obligation to Purchase. Issuer
understands that Subscriber's obligation to purchase the Shares
subscribed for hereunder is conditioned upon:
a. execution and delivery of this Agreement;
b. exercise of the Warrants by Subscriber; and
c. delivery of Shares with restrictive legend stapled on the
share certificates.
11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ITS CHOICE OF
LAW PRINCIPLES.
12. Entire Agreement. This Agreement, along with the Escrow Agreement
among the Escrow Agent, the Company and the Subscriber, constitutes the
entire agreement among the parties hereof with respect to the subject
matter hereof and supersedes any and all prior or contemporaneous
representations, warranties, agreements and understandings in
connection therewith. This Agreement may be amended only by a writing
executed by all parties hereto.
13. Full Name and Address of Subscriber for Registration Purposes:
NAME: _________________________________________
ADDRESS: _________________________________________
_________________________________________
_________________________________________
Tel. No. _________________________________________
Fax No. _________________________________________
Contact
Name: _________________________________________
14. Delivery Instructions (if different from Registration Name):
NAME: ________________________________________
ADDRESS: ________________________________________
________________________________________
Tel. No. _________________________________________
Fax No. _________________________________________
Contact
Name: _________________________________________
Special
Instructions: _________________________________________
15. Issuer's Acceptance based upon Subscriber Representations. Issuer
is accepting this subscription based upon and in reliance upon the
representations and warranties of Subscriber contained, herein
including, without limitation, those contained in sections 2 a(v),
(vi), (xi) and (xii) and this Agreement would not be accepted by Issuer
in the absence of such representations and warranties.
IN WITNESS WHEREOF, the undersigned has executed this Offshore
Securities Subscription Agreement as of the 9th day of September, 1996.
Amount Subscribed for:
$______________
_________________________________
(Signature of Subscriber)
_________________________________
(Name Typed or Printed)
_________________________________
(Title)
Type of Ownership:
(Check one)
Natural Persons
_____ Individual
_____ Joint tenants with
rights of survivorship
_____ Tenants in common
_____ Tenants by the entirety
Entities
_____ Corporation
_____ Partnership
_____ Trust
_____ Estate
_____ Other (specify) ____________________
Accepted as of the ____ day of
____________, 1996
By:______________________________________
____
Xxxxxxx X. Xxxxxx, President
XXXXXX XXXXXX HOLDING CORPORATION
APPENDIX "A"
SUBSCRIBER REPRESENTATION LETTER
Dear Sirs:
The undersigned _____________________________, has purchased on
______________, 1996, _____________________ shares of Common Stock of
XXXXXX XXXXXX HOLDING CORPORATION (the "Company") at a per share
subscription price of $1.25 per share, ("Common Stock") (the Common
Stock referred to herein as the "Shares"). In connection with such
purchase, the undersigned, has heretofore executed and delivered a
subscription agreement ("Subscription Agreement") of your design. As
the forty (40) day transaction restriction period has expired, the
undersigned hereby requests that the Shares be transferred into "Street
Name" of __________________________________.
The undersigned represents and warrants as follows:
(1) The offer to purchase the Shares was made to it outside of the
United States and the undersigned was, at the time the Subscription
Agreement was executed and delivered, and is now, outside the United
States;
(2) It is not a U.S. Person (as such term is defined in Section 902(a)
of Regulation S ("Regulation S") promulgated under the United States
Securities Act of 1933 (the "Securities Act"), and it has purchased the
Shares for its own account and not for the account or benefit of any
U.S. person;
(3) All offers and sales by the undersigned of the Shares shall be
made pursuant to an effective registration statement under the
Securities Act, or pursuant to an exemption from, or in a transaction
not subject to the registration requirements of, the Securities Act.
(4) It is familiar with and understands the terms, conditions and
requirements contained in Regulation S and definitions of U.S. persons
contained in Regulation S;
(5) The undersigned has not engaged in any "directed selling efforts"
(as such term is defined in Regulation S) with respect to the Shares;
and
(6) The undersigned purchased its Shares with investment intent and
presently has no interest to sell, dispose of or otherwise transfer the
Shares. The purpose for this request is to facilitate the management
of the undersigned's investment accounts.
(7) The representations and warranties of the undersigned contained in
the Subscription Agreement are true and correct in all respects on and
as of the date hereof as though made on and as of the date hereof.
Dated this _______ day of the month of _____________, 1996.
__________________________
Official Signature of Subscriber
__________________________
Title
__________________________
Country of Execution
APPENDIX "B"
"The Securities covered hereby have not been registered under the
Securities Act of 1933, as amended (the "Act") and may not be offered
or sold within the United States or to or for the account or the
benefit of U.S. persons (i) as part of a distribution at any time or
(ii) otherwise until October 21, 1996 except, in either case, in
accordance with Regulation S under the Act. Terms used above have the
meaning given to them by Regulation S."
