SUBSCRIPTION AGREEMENT
Exhibit
10.23
This
Subscription Agreement (this “Agreement”)
is
dated as of August ___, 2007, by and among DRTATTOFF, LLC., a California
limited liability company (the “Company”),
and
the purchaser identified on the signature page hereto (each, a “Purchaser”
).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
Section 4(2) of the Securities Act of 1933, as amended (the “Securities
Act”),
and
Rule 506 promulgated thereunder, the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires to purchase
from the Company, securities of the Company as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agrees as
follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement, the following terms
have the meanings indicated in this Section 1.1:
“Affiliate”
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144 under the Securities Act.
With
respect to a Purchaser, any investment fund or managed account that is managed
on a discretionary basis by the same investment manager as such Purchaser will
be deemed to be an Affiliate of such Purchaser.
“Closing”
means
the closing of the purchase and sale of the Securities pursuant to Section
2.1.
The
Company may effect more than one Closing.
“Closing
Date”
means
the day selected by the Company after all of the Transaction Documents have
been
executed and delivered by the Purchaser, and all conditions precedent to the
parties’ obligations under this Agreement have been satisfied or
waived.
The
Company may have more than one Closing Date.
“Commission”
means
the U.S. Securities and Exchange Commission.
“including”
means
including, without limitation.
“Memorandum”
means
the Company’s Confidential Private Placement Memorandum, dated as of August ___,
2007with respect to the offering contemplated hereby.
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
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“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted.
“Securities”
means
the Units and Warrants issuable under
the
Transaction Documents.
“Transaction
Documents”
means
this Agreement and any other documents or agreements executed in connection
with
the transactions contemplated hereunder.
“Units”
means
the units of membership interests of the Company, and any securities into which
such units shall hereinafter have been reclassified into.
ARTICLE
II
SECURITIES
2.1 Closing.
On the
Closing Date, upon the terms and subject to the conditions set forth herein,
the
Company agrees to deliver, and each Purchaser agrees to accept the number of
shares of the Securities set forth opposite the Purchaser’s name on the
signature page hereto. The Company shall deliver to the Purchaser the
Purchaser’s respective Units as determined pursuant to the terms set forth in
the Memorandum and the other items set forth in Section 2.2 at the Closing.
Upon
satisfaction of the conditions set forth in Section 2.2, the Closing shall
occur
at the offices of the Company, or such other location as the parties shall
mutually agree. The Company may enter into Transaction Documents (including
a
Subscription Agreement) with other purchasers with respect to the Securities
offered hereby. Each set of Transaction Documents shall be identical in all
material respects except as to the identities of the respective Purchasers,
the
amount of Securities to be purchased and the date of execution and closing.
The
Company may have more than one Closing and Closing Date with respect to such
other Transaction Documents.
2.2 Deliveries.
(a) On
the
Closing Date, the Company shall deliver or cause to be delivered to the
Purchaser the following:
(i) this
Agreement duly executed by the Company; and
(ii) a
certificate evidencing a number of Units subscribed for;
(iii) a
warrant
evidencing a number of warrant Units subscribed for;
(b) On
the
Closing Date, each Purchaser shall deliver or cause to be delivered the
following:
(i) this
Agreement duly executed by such Purchaser; and
(ii) an
Accredited
Investor Questionnaire completed by the Purchaser and
reasonably satisfactory to counsel for the Company.
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2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the
accuracy in all material respects when made and on the Closing Date (except
for
representations and warranties made as of a specific date, which must
be
accurate in all material respects as of such date) of the representations and
warranties of the Purchaser contained herein and in the Accredited Investor
Questionnaire attached hereto as Exhibit A;
(ii) all
obligations, covenants and agreements of the Purchaser required to be performed
at or prior to the Closing Date shall have been performed; and
(iii) the
delivery by the Purchaser of the items set forth in Section 2.2(b) of this
Agreement.
(b) The
respective obligations of the Purchaser hereunder in connection with the Closing
are subject to the following conditions being met:
(i) all
obligations, covenants and agreements of the Company required to be performed
at
or prior to the Closing Date shall have been performed; and
(ii) the
delivery by the Company of the items set forth in Section 2.2(a) of this
Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Purchaser.
Each
Purchaser hereby, for itself and for no other Purchaser, represents and warrants
as of the date hereof and as of the Closing Date to the Company as
follows:
(a) Organization;
Authority.
If the
Purchaser is an entity, such Purchaser is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate or partnership power and authority
to
enter into and to consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations thereunder. The execution,
delivery and performance by such Purchaser of the transactions contemplated
by
this Agreement have been duly authorized by all necessary corporate, if
applicable, or similar action on the part of such Purchaser. Each Transaction
Document to which it is a party has been duly executed by such Purchaser, and
when delivered by such Purchaser in accordance with the terms hereof, will
constitute the valid and
legally binding obligation of such Purchaser, enforceable against it in
accordance with its terms, except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other
laws
of general application affecting enforcement of creditors’ rights generally,
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
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(b) Purchaser
Representation.
Such
Purchaser understands that the Securities are “restricted securities” and have
not been registered under the Securities Act or any applicable state securities
law and is acquiring the Securities as principal for the Purchaser’s own account
for investment and not with a view to,
or for
sale in connection with, any distribution of such Securities or any part
thereof, has no present intention of distributing any of such Securities and
has
no arrangement or understanding with any other Persons regarding the
distribution of such Securities. Such Purchaser is acquiring the Securities
hereunder in the ordinary course of the Purchaser’s business. Such Purchaser
does not have any agreement or understanding, directly or indirectly, with
any
Person to distribute any of the Securities.
(c) Purchaser
Status.
At the
time such Purchaser was offered the Securities, the Purchaser was, and at the
date hereof the Purchaser is, an
“accredited investor” as defined in
Regulation D under
the
Securities Act.
(d) Experience
of Such Purchaser.
Such
Purchaser, either alone or together with the Purchaser’s representatives, has
such knowledge, sophistication and experience in business and financial matters
so as to be capable of evaluating the merits and risks of the prospective
investment in the Securities,
and has
so evaluated the merits and risks of such investment. Such Purchaser is able
to
bear the economic risk of an investment in the Securities, has no need for
liquidity with respect to the Purchaser’s investment and, at the present time,
is able to afford a complete loss of such investment.
(e) General
Solicitation.
Such
Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities, published
in
any newspaper, magazine or similar media or broadcast over television or radio
or presented at any seminar or any other general solicitation or general
advertisement.
(f) Purchaser
Investigation.
Such
Purchaser has had the opportunity to request and receive all information deemed
necessary by the Purchaser to evaluate an investment in the Company. The
Purchaser confirms that the Company has made available to the Purchaser the
opportunity to ask questions of, and receive answers from the Company concerning
the terms and conditions of the Securities and the nature of the business of
the
Company, and to obtain additional information or documents which the Company
possesses or can acquire without unreasonable effort or expense. In formulating
the decision to acquire the Securities, the Purchaser has relied solely upon
the
Purchaser’s own advisors and the Purchaser’s own independent investigation of
the Company with respect to this Agreement and the nature and effect of any
investment in the Securities as well as the information contained, or
incorporated by reference, in the Company’s Memorandum.
(g) Certain
Fees.
No
brokerage or finder’s fees or commissions are or will be payable to any broker,
financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by this
Agreement based upon arrangements made by the Purchaser or any of the
Purchaser’s Affiliates. The Company shall have no obligation with respect to any
fees or with respect to any claims made by or on behalf of any Person for fees
of a type contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement based upon arrangements made by
any
Purchaser or any of the Purchaser’s Affiliates.
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ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of Securities other than
pursuant to an effective registration statement, the Company may require the
transferor thereof to provide to the Company an opinion of counsel selected
by
the transferor and reasonably acceptable to the Company, the form and substance
of which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration of such transferred Securities
under the Securities Act. As a condition of transfer, any such transferee shall
agree in writing to be bound by the terms of this Agreement and shall have
the
rights of a Purchaser under this Agreement, provided, that the foregoing shall
not apply to a transfer of Securities pursuant to an effective registration
statement.
(b) Each
Purchaser agrees to the imprinting, so long as is required by applicable
federal and state securities laws,
of a
legend on any of the certificate(s) evidencing the Securities in the following
form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION,
OR THE SECURITIES COMMISSION OF ANY STATE, IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE COMPANY TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
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(c) Each
Purchaser agrees that the removal of the restrictive legend from the
certificate(s) evidencing the Securities as set forth in this Section 4.1 is
predicated upon the Company’s reliance that the Purchaser will sell any
Securities pursuant to either the registration requirements of the Securities
Act, including any applicable prospectus delivery requirements, or an exemption
therefrom.
ARTICLE
V
RELEASE
5.1 Release.
Each
Purchaser, does hereby release, remise and forever discharge the Company and
its
predecessors, successors and assigns, and respective directors, officers,
employees, agents and representatives thereof (collectively, the “Released
Parties”) of and from any and all actions, cases of action, suits, claims,
demands, accountings, covenants, contracts, agreements, debt, liabilities and
obligations of any nature, fixed or contingent, known or unknown, whether at
law
or in equity, which the Purchaser ever had, now has, or which the Purchaser’s
heirs, executors, administrators, or legal representatives, successors, or
assigns, as applicable, or any of them, hereinafter can, shall or may have
against the Released Parties for or by reason of any event, occurrence,
circumstance or matter of any nature whatsoever which occurred or existed at
any
time on or before the date hereof.
5.2 Indemnification.
Each
Purchaser shall indemnify and hold the Released Parties harmless from and
against all damages, expenses, costs and attorneys’ fees which any of the
Released Parties may suffer or incur by reason of any breach by such Purchaser
of any of the provisions hereof.
ARTICLE
VI
MISCELLANEOUS
6.1 Fees
and Expenses.
Except
as expressly set forth in the Transaction Documents to the contrary, each party
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to
the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all transfer agent fees, stamp taxes and other taxes
and
duties levied in connection with the issuance of any Securities in the name
of
the Purchaser.
6.2 Entire
Agreement.
The
Transaction Documents, together with the exhibits and schedules thereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.
6.3 Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via facsimile
at the facsimile number set forth on the signature pages attached hereto prior
to 5:30 p.m. (Eastern Time) on a business day, (b) the next business day after
the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number set forth on the signature pages attached
hereto on a day that is not a business day or later than 5:30 p.m. (Eastern
Time) on any business day, (c) the second business day following the date of
mailing, if sent by U.S. nationally recognized overnight courier service, or
(d)
upon actual receipt by the party to whom such notice is required to be given.
The address for such notices and communications shall be as set forth on the
signature pages attached hereto.
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6.4 Amendments;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and each
Purchaser or, in the case of a waiver, by the party against whom enforcement
of
any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be
a
continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right.
6.5 Construction.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
6.6 Successors
and Assigns.
This
Agreement is intended for the benefit of and shall be binding upon and inure
to
the benefit of the parties and their heirs, executors, administrators, legal
representatives, successors or permitted assigns, as applicable. The Company
may
not assign this Agreement or any rights or obligations hereunder without the
prior written consent of each Purchaser. Any Purchaser may assign any or all
of
the Purchaser’s rights under this Agreement to any Person to whom such Purchaser
assigns or transfers any Securities, provided such transferee agrees in writing
to be bound, with respect to the transferred Securities, by the provisions
hereof that apply to the “Purchaser.”
6.7 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and enforced
in
accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement
and
any other Transaction Documents (whether brought against a party hereto or
its
respective affiliates, directors, officers, shareholders, employees or agents)
shall be commenced exclusively in the state and federal courts sitting in the
State of California.
Each party hereby irrevocably submits to the exclusive jurisdiction of the
state
and federal courts sitting in the County
of
Los
Angeles, State
of
California for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any suit, action
or
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such suit, action or proceeding is improper or inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Agreement and agrees that such service
shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. The parties hereby waive all rights to a trial
by jury. If either party shall commence an action or proceeding to enforce
any
provisions of the Transaction Documents, then the prevailing party in such
action or proceeding shall be reimbursed by the other party for its attorneys’
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
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6.8 Survival.
The
covenants, representations and warranties contained herein, including, but
not
limited to, those contained in Article V of this Agreement, shall survive the
Closing and the delivery of the Securities.
6.9 Execution.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original
thereof.
6.10 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and
the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
6.11 Replacement
of Securities.
If any
certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction and
customary and reasonable indemnity, if requested. The applicants for a new
certificate or instrument under such circumstances shall also pay any reasonable
third-party costs associated with the issuance of such replacement
Securities.
6.12 Remedies.
In
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, each Purchaser and the Company will be
entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agree to waive in any action for specific performance of
any
such obligation the defense that a remedy at law would be adequate.
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6.13 Independent
Nature of Purchaser’s Obligations and Rights.
The
obligations of each Purchaser under any Transaction Document are several and
not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein or in any
Transaction Document, and no action taken by any Purchaser pursuant thereto,
shall be deemed to constitute the Purchaser as a partnership, an association,
a
joint venture or any other kind of entity, or create a presumption that the
Purchaser is in any way acting in concert or as a member of a group with respect
to such obligations or the transactions contemplated by the Transaction
Documents. Each Purchaser shall be entitled to independently protect and enforce
the Purchaser’s rights, including without limitation, the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall not
be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose. Each Purchaser has been represented by the
Purchaser’s own separate legal counsel in the Purchaser’s review and negotiation
of the Transaction Documents. The Company has elected to provide all Purchasers
with the same terms and the Transaction Documents for the convenience of the
Company and not because it was required or requested to do so by the
Purchasers.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the Company has caused this Securities Purchase Agreement
to be
duly executed by its authorized signatory as of the date first indicated
above.
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DRTATTOFF,
LLC
|
ADDRESS
0000
Xxxxxxxx Xxxx
Xxxxxxx
Xxxxx XX 00000
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By:
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Name:
Title:
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Facsimile
No.: (000) 000-0000
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With
a copy to (which shall not constitute notice):
Xxxxx
Xxxxxxx
Blank
Rome LLP
0000
Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx
Xxxxx, XX 00000
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
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PURCHASER
SIGNATURE PAGES TO THE SUBSCRIPTION AGREEMENT
IN
WITNESS WHEREOF, the undersigned executed or caused this Subscription Agreement
to be duly executed by its respective authorized signatories as of the date
first indicated above.
Number
of
Units subscribed for: _______________________
Number
of
Warrant Units subscribed for: _______________________
Name
of
Purchaser: __________________________
Signature
of Authorized Signatory of Subscriber:
__________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
Email
Address of Authorized Signatory: ________________________________
EIN
Number of Purchaser: ______________________________________
Address
for Notice of Purchaser:
Facsimile
No. of Purchaser:
Address
for Delivery of Securities for Purchaser (if not same as above):
C-11
EXHIBIT
A
ACCREDITED
INVESTOR QUESTIONNAIRE
(a) INDIVIDUAL
INVESTOR QUESTIONNAIRE
Investor
Name: ______________________
The
information contained in this Questionnaire is being furnished in order to
determine whether the undersigned Investor's subscription to purchase the Units
and Warrants described in the Confidential Private Offering Memorandum may
be
accepted.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned Investor understands, however, that the Company may present this
Questionnaire to such parties as it deems appropriate if called upon to
establish that the proposed offer to purchase the Units and Warrants is exempt
from registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned Investor understands that the offering may be required to be
reported to the Securities and Exchange Commission and to various state
securities and “blue sky” regulators.
Please
answer all questions. If the answer is “none” or “not applicable,” please so
state.
INFORMATION
REQUIRED OF EACH PROSPECTIVE INVESTOR:
1.
Name:
___________________________________________________________
Age:
___________________
Social
Security Number: ______________________________________ No.
of
Dependents: _______________
Marital
Status: ______________________________________________________
Citizenship: ____________
2. Residence
Address and Telephone Number:
_____________________________________________________
___________________________________________________________________________
___________________________________________________________________________
3.
State
in
which you:
Are
licensed to drive?
______________________________________________________________________
Are
registered to vote?
_____________________________________________________________________
File
income tax returns?
_____________________________________________________________________
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4. Employer
and Position:
_____________________________________________________________________
__________________________________________________________________________
5. Business
Address and Telephone Number:
______________________________________________________
___________________________________________________________________________
___________________________________________________________________________
6. Business
or professional education and the degrees received are as follows:
School Degree Year
Received
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
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7.
|
(a)
|
Individual
income during 2005:
|
______
|
$50,000
- $100,000
|
|
(exclusive
of spouse's
|
______
|
$100,000
- $200,000
|
||
|
income)
|
______
|
over
$200,000
|
||
|
(b)
|
Individual
income during 2006:
|
______
|
$50,000
- $100,000
|
|
|
(exclusive
of spouse's
|
______
|
$100,000
- $200,000
|
||
|
income)
|
______
|
over
$200,000
|
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|
(c)
|
Estimated
income during 2007:
|
______
|
$50,000
- $100,000
|
|
|
(exclusive
of spouse's
|
______
|
$100,000
- $200,000
|
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|
income
|
______
|
over
$200,000
|
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|
(d)
|
Joint
income, with spouse,
|
______
|
$100,000
- $300,000
|
|
|
during
2005
|
______
|
over
$300,000
|
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|
(e)
|
Joint
income, with spouse,
|
______
|
$100,000
- $300,000
|
|
|
during
2006
|
______
|
over
$300,000
|
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|
(f)
|
Estimated
joint income,
|
______
|
$100,000
- $300,000
|
|
|
with
spouse, for 2007
|
______
|
over
$300,000
|
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8.
|
Estimated
net worth
|
______
|
under
$1,000,000
|
|
|
(may
include joint net
|
______
|
over
$1,000,000
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worth
with spouse)
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| 9. |
Are
you involved in any litigation, which, if an adverse decision occurred,
would materially affect your financial condition? Yes
No
If
yes, please provide details:
|
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
|
10.
|
I
consider myself to be an experienced and sophisticated investor or
am
advised by a qualified investment advisor, all as required under
the
various securities laws and regulations: Yes ____ No
____
|
|
11.
|
I
understand the full nature and risk of an investment in the Units
and
Warrants, and I can afford the complete loss of my entire investment.
Yes
____ No ____
|
|
12.
|
I
am able to bear the economic risk of an investment in the Units and
Warrants for an indefinite period of time and understand that an
investment in the Units is illiquid. Yes ____ No ____
|
|
13.
|
I
further understand that I will be required to agree not to dispose
of the
Units or Warrants except in compliance with other conditions contained
in
the accompanying Subscription Agreement and Confidential Private
Offering
Memorandum. Yes ____ No ____
|
| 14. |
Have
you participated in other private placements of securities? Yes ____
No
____
|
I
understand that the Company will be relying on the accuracy and completeness
of
my responses to the foregoing questions and I represent and warrant to the
Company as follows:
The
answers to the above questions are complete and correct and may be relied upon
by the Company whether the offering in which I propose to participate is exempt
from registration under the Act and the securities laws of certain
states;
I
will
notify the Company immediately of any material change in any statement made
herein occurring prior to the closing of any purchase by me of an interest
in
the Company; and
I
have
sufficient knowledge and experience in financial and business matters to
evaluate the merits and risks of the prospective investment; I am able to bear
the economic risk of the investment and currently could afford a complete loss
of such investment.
[Signature
Page Follows]
C-14
IN
WITNESS WHEREOF, I have executed this Investor Questionnaire this __________
__,
2007 and declare that it is truthful and correct to the best of my
knowledge.
|
Signature
of Prospective Investor
|
|
Signature
of Prospective Investor
|
C-15
CORPORATION
INVESTOR QUESTIONNAIRE
Investor
Name: _______________________________ (the
“Corporation”)
The
information contained in this Questionnaire is being furnished in order to
determine whether the undersigned Corporation's subscription to purchase the
Units and Warrants described in the Confidential Private Offering Memorandum
may
be accepted.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned Corporation understands, however, that the Company may present
this
Questionnaire to such parties as it deems appropriate if called upon to
establish that the proposed offer to purchase the Units and Warrants is exempt
from registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned Corporation understands that the offering may be required to be
reported to the Securities and Exchange Commission and to various state
securities and “blue sky” regulators.
|
I.
|
PLEASE
CHECK ANY OF STATEMENTS 1-4 BELOW THAT APPLIES TO THE
CORPORATION.
|
___
1.
The
undersigned Corporation: (a) has total assets in excess of $_________; and
(b)
was not formed for the specific purpose to purchase the Units and
Warrants.
___
2.
Each
of
the stockholders of the undersigned Corporation is able to certify that such
stockholder meets at least one of the following two conditions:
a. the
stockholder is a natural person whose individual net worth1 or
joint
net worth with his or her spouse exceeds $_________; or
b. the
stockholder is a natural person who had an individual income in excess of
$_______ in each of 2005 and 2006 and who reasonably expects an individual
income in excess of $_______ in 2007.
___
3.
Each
of
the stockholders of the undersigned Corporation is able to certify that such
stockholder is a natural person who, together with his or her spouse, has had
a
joint income in excess of $_______ in each of 2005 and 2006 and who reasonably
expects a joint income in excess of $_______ during 2007.
___
4.
The
undersigned Corporation is:
a. a
bank as
defined in Section 3(a)(2) of the Securities Act; or
b. 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;
or
1 For
purposes of this Questionnaire, the term “net worth” means the excess of total
assets over total liabilities. In determining income, an investor should add
to
his or her adjusted gross income any amounts attributable to tax-exempt income
received, losses claimed as a limited Company, deductions claimed for depletion,
contributions to XXX or Xxxxx retirement plan, alimony payments, and any amount
by which income from long-term capital gains has been reduced in arriving at
adjusted gross income.
C-16
c. a
broker
or dealer registered pursuant to Section 15 of the Securities Exchange Act
of
1934, as amended; or
d. an
insurance company as defined in Section 2(13) of the Securities Act;
or
e. an
investment company registered under the Investment Company Act of 1940, as
amended, or a business development company as defined in Section 2(a)(48) of
the
Investment Company Act of 1940, as amended; or
f. 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,
as
amended; or
g. an
organization described in Section 501(c)(3) of the Internal Revenue Code of
1986, as amended, or a Massachusetts or similar business trust or Company not
formed for the specific purpose to purchase the Units offered hereby, with
total
assets in excess of $_________; or
h. a
private
business development company as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940, as amended.
IF
YOU
CHECKED STATEMENT 2 OR STATEMENT 3 IN SECTION I AND DID NOT
CHECK
STATEMENT 1, YOU MUST PROVIDE A LETTER SIGNED BY AN OFFICER OF THE UNDERSIGNED
CORPORATION LISTING THE NAME OF EACH STOCKHOLDER AND THE REASON (UNDER STATEMENT
2 OR STATEMENT 3) WHY SUCH STOCKHOLDER QUALIFIES AS AN ACCREDITED INVESTOR
(ON
THE BASIS OF NET WORTH, INDIVIDUAL INCOME, OR JOINT INCOME) OR
EACH
STOCKHOLDER MUST PHOTOCOPY AND COMPLETE SECTION II BELOW.
|
II.
|
IF
YOU CHECKED STATEMENT 2 OR STATEMENT 3 IN SECTION I ABOVE, EACH
STOCKHOLDER MUST CHECK ANY OF THE STATEMENTS 1-5 BELOW THAT APPLIES
TO
SUCH STOCKHOLDER AND SIGN BELOW WHERE
INDICATED.
|
___
1.
I
have an
individual net worth or joint net worth with my spouse in excess of
$_________.
___
2.
I
have
had an individual income in excess of $_______ in each of 2005 and 2006, and
I
reasonably expect an individual income in excess of $_______ for 2007. NOTE:
IF
YOU ARE BUYING JOINTLY WITH YOUR SPOUSE, YOU MUST EACH HAVE AN INDIVIDUAL INCOME
IN EXCESS OF $200,000 IN EACH OF THESE YEARS IN ORDER TO CHECK THIS
BOX.
___
3.
My
spouse
and I have had a joint income in excess of $_______ in each of 2005 and 2006,
and I reasonably expect a joint income in excess of $_______ for
2007.
___
4.
I
am a
Massachusetts resident, and my purchase of the Units does not exceed 25% of
my
net worth or, if I am married, 25% of the combined net worth of my spouse and
me, excluding principal residence and home furnishings.
C-17
|
___
5.
|
I
am a director or executive officer of the
Corporation.
|
|
Print
Name of Shareholder(s)
|
Signature
of Shareholder(s)
|
||||
| III. |
OTHER
CERTIFICATIONS.
|
By
signing the Signature Page, the undersigned certifies the
following:
(a) that
the
Corporation's purchase of the Units and Warrants will be solely for the
Corporation's own account and not for the account of any other person or entity;
and
(b) that
the
Corporation's name, address of principal place of business, place of
incorporation, and taxpayer identification number as set forth in this
Questionnaire are true, correct, and complete.
| IV. |
GENERAL
INFORMATION.
|
(a) PROSPECTIVE
PURCHASER (THE CORPORATION)
Name:
_________________________________________________________________________________
Principal
Place of Business:
_________________________________________________________________
(Number
and Street)
Address
for Correspondence (if different):
______________________________________________________
(Number
and Street)
Telephone
Number: (_____) _______________________________
State
of
Incorporation: ____________________________ Date
of Formation: ________________________
Taxpayer
Identification Number: ____________________________
Number
of
Stockholders: _________________________________
(b) INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE CORPORATION
Name:
_________________________________________________________________________________
Position
or Title:
_________________________________________________________________________
(c) IF
SECTION II HAS BEEN COMPLETED, NAMES OF INDIVIDUAL STOCKHOLDERS
Name(s)
of Stockholders:
__________________________________________________________________
C-18
Name(s)
of Stockholders:
_________________________________________________________________
1.
Are
you involved in any litigation, which, if an adverse decision occurred, would
materially affect your financial condition? Yes
No
If yes,
please provide details:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
2.
I
consider myself to be an experienced and sophisticated investor or am advised
by
a qualified investment advisor, all as required under the various securities
laws and regulations: Yes ____ No ____
3.
I
understand the full nature and risk of an investment in the Units or Warrants,
and I can afford the complete loss of my entire investment. Yes ____ No
____
4.
I am
able to bear the economic risk of an investment in the Units and Warrants for
an
indefinite period of time and understand that an investment in the Units is
illiquid. Yes ____ No ____
5.
I
further understand that I will be required to agree not to dispose of the Units
and Warrants except in compliance with other conditions contained in the
accompanying Subscription Agreement and Confidential Private Offering
Memorandum. Yes ____ No ____
6.
Have
you participated in other private placements of securities? Yes ____ No
____
[Signature
Page Follows]
C-19
The
undersigned understands that the Company is relying upon the representations
set
forth above in determining whether to accept the subscription being
tendered.
|
Name
of Corporation
|
|
By:
*Signature
of Authorized Officer
|
|
Title
(If Signed on Behalf of Entity)
|
|
Print
Name
|
|
Date
|
* Signature
must match signatory to attached Subscription Agreement.
C-20
PARTNERSHIP
INVESTOR QUESTIONNAIRE
Investor
Name: ____________________________ (the
“Partnership”)
The
information contained in this Questionnaire is being furnished in order to
determine whether the undersigned Partnership’s subscription to purchase the
Units and Warrants described in the Company’s Subscription
Agreement and Confidential Private Offering Memorandum may be
accepted.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned Partnership understands, however, that the Company may present
this
Questionnaire to such parties as it deems appropriate if called upon to
establish that the proposed offer to purchase the Units and Warrants is exempt
from registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned Partnership understands that the offering may be required to be
reported to the Securities and Exchange Commission and to various state
securities and “blue sky” regulators.
|
I.
|
PLEASE
CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLIES TO THE
PARTNERSHIP.
|
___
1.
The
undersigned Partnership: (a) has total assets in excess of $_________; and
(b)
was not formed for the specific purpose to purchase the Units and
Warrants.
___
2.
Each
of
the partners of the undersigned Partnership is able to certify that such partner
meets at least one of the following two conditions:
a. the
partner is a natural person whose individual net worth2 or
joint
net worth with his or her spouse exceeds $_________; or
b. the
partner is a natural person who had an individual income in excess of $_______
in each of 2005 and 2006 and who reasonably expects an individual income in
excess of $_______ in 2007.
___
3.
Each
of
the partners of the undersigned Partnership is able to certify that such partner
is a natural person who, together with his or her spouse, has had a joint income
in excess of $_______ in each of 2005 and 2006 and who reasonably expects a
joint income in excess of $_______ during 2007.
IF
YOU
CHECKED STATEMENT 2 OR STATEMENT 3 IN SECTION I AND DID NOT
CHECK
STATEMENT 1, YOU MUST PROVIDE A LETTER SIGNED BY AN OFFICER, PARTNER OR GENERAL
PARTNER OF THE UNDERSIGNED PARTNERSHIP LISTING THE NAME OF EACH PARTNER
AND THE REASON (UNDER STATEMENT 2 OR STATEMENT 3) WHY SUCH PARTNER QUALIFIES
AS
AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL INCOME, OR JOINT
INCOME) OR
EACH
PARTNER MUST PHOTOCOPY AND COMPLETE SECTION II BELOW.
2
For purposes of this Questionnaire, the term “net worth” means the excess of
total assets over total liabilities. In determining income, an investor should
add to his or her adjusted gross income any amounts attributable to tax-exempt
income received, losses claimed as a limited partnership, deductions claimed
for
depletion, contributions to XXX or Xxxxx retirement plan, alimony payments,
and
any amount by which income from long-term capital gains has been reduced
in
arriving at adjusted gross income.
21
|
II.
|
IF
YOU CHECKED STATEMENT 2 OR STATEMENT 3 IN SECTION I ABOVE, EACH PARTNER
MUST CHECK ANY OF THE STATEMENTS 1-5 BELOW THAT APPLIES TO SUCH PARTNER
AND SIGN BELOW WHERE
INDICATED.
|
___
1.
I
have an
individual net worth or joint net worth with my spouse in excess of
$_________.
___
2.
I
have
had an individual income in excess of $_______ in each of 2005 and 2006, and
I
reasonably expect an individual income in excess of $_______ for 2007.
___
3.
My
spouse
and I have had a joint income in excess of $_______ in each of 2005 and 2006,
and I reasonably expect a joint income in excess of $_______ for
2007.
___
4.
I
am a
Massachusetts resident, and my purchase of the Units does not exceed 25% of
my
net worth or, if I am married, 25% of the combined net worth of my spouse and
me, excluding principal residence and home furnishings.
___
5.
I
am a
director, manager or executive officer of the Partnership.
|
Print
Name of Partner(s)
|
Signature
of Shareholder(s)
|
||||
|
Print
Name of Partner(s)
|
Signature
of Shareholder(s)
|
||||
|
Print
Name of Partner(s)
|
Signature
of Shareholder(s)
|
||||
III.
OTHER
CERTIFICATIONS.
By
signing the Signature Page, the undersigned certifies the
following:
22
1. that
the
Partnership's purchase of the Units and Warrants will be solely for the
Partnership's own account and not for the account of any other person or entity;
and
2. that
the
Partnership's name, address of principal place of business, place of
incorporation, and taxpayer identification number as set forth in this
Questionnaire are true, correct, and complete.
IV.
GENERAL
INFORMATION.
1. PROSPECTIVE
PURCHASER (THE PARTNERSHIP)
Name:
__________________________________________________________________________________
Principal
Place of Business For Correspondence:
___________________________________________________________________________
___________________________________________________________________________
Telephone
Number: (_____) __________________
State
of
Certification: ____________________________ Date
of Formation: ________________________
Taxpayer
Identification Number: ____________________________
Number
of
Partners: _________________________________
2. INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE PARTNERSHIP
Name:
_________________________________________________________________________________
Position
or Title:
_________________________________________________________________________
3. IF
SECTION II HAS BEEN COMPLETED, NAMES OF INDIVIDUAL PARTNERS
Name(s)
of Partners:
______________________________________________________________________
Name(s)
of Partners:
______________________________________________________________________
1.
Are
you involved in any litigation, which, if an adverse decision occurred, would
materially affect your financial condition? Yes ___
No
___
If yes,
please provide details:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
23
2.
I
consider myself to be an experienced and sophisticated investor or am advised
by
a qualified investment advisor, all as required under the various securities
laws and regulations: Yes ____ No ____
3.
I
understand the full nature and risk of an investment in the Units and Warrants,
and I can afford the complete loss of my entire investment. Yes ____ No
____
4.
I am
able to bear the economic risk of an investment in the Units and Warrants for
an
indefinite period of time and understand that an investment in the Units and
Warrants is illiquid. Yes ____ No ____
5.
I
further understand that I will be required to agree not to dispose of the Units
or Warrant except in compliance with other conditions contained in the
accompanying Subscription Agreement and Confidential Private Offering
Memorandum. Yes ____ No ____
6.
Have
you participated in other private placements of securities? Yes ____ No
____
[Signature
Page Follows]
24
The
undersigned understands that the Company is relying upon the representations
set
forth above in determining whether to accept the subscription being
tendered.
|
By:
|
||
|
Its:
|
||
25
