EXHIBIT 10.6
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT ("Subscription Agreement") made as of this 31st day
of December, 2004, by and among MAC Worldwide, Inc., a Delaware corporation (the
"Company"), Trafficlogic, Inc., a California corporation and upon the Closing
Date (as defined below) a wholly-owned subsidiary of the Company
("Trafficlogic") and the undersigned (the "Subscriber").
WHEREAS, the Company and Trafficlogic are parties to a certain Agreement
of Merger and Plan of Reorganization dated as of December 30, 2004 (the "Merger
Agreement"), pursuant to which Trafficlogic will merge with and into a
newly-organized, wholly-owned subsidiary of the Company, Trafficlogic will
become a wholly-owned subsidiary of the Company, and the existing Trafficlogic
stockholders will obtain majority ownership and control of the Company (the
"Merger"). Immediately after the effective time of the Merger (the "Closing
Date"), the Company will change its name to InfoSearch Media, Inc. and will
assume, through Trafficlogic, its business and operations.
WHEREAS, to facilitate the Merger, and as a condition to the closing of
the Merger, the Company intends to issue, in a private placement transaction
(the "Offering") pursuant to Regulation D promulgated under the Securities Act
of 1933, as amended (the "Act"), shares of the Company's common stock, par value
$0.001 per share (the "Common Stock"), at a purchase price of $1.00 per share on
the terms and conditions hereinafter set forth, and the Subscriber desires to
acquire that number of shares of the Common Stock set forth on the signature
page hereof.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
1. Subscription Procedure
1.1 Subject to the terms and conditions hereinafter set forth, the
Subscriber hereby subscribes for and agrees to purchase from the Company such
number of shares of Common Stock as is set forth upon the signature page hereof
at a price of $1.00 per share (the "Purchase Price"). The Company agrees to sell
such shares of Common Stock to the Subscriber for the Purchase Price.
1.2 The subscription period will begin as of December 14, 2004 and will
terminate (if the Closing Date has not earlier occurred) at 5:00 PM Eastern
Standard Time on December 15, 2004, unless extended by the Company and
Trafficlogic for up to an additional 90 days (the "Termination Date"). The
Common Stock will be offered and sold as more particularly set forth in the
Confidential Offering Memorandum dated December 14, 2004 and any supplements
thereto (the "Offering Memorandum"). The minimum dollar amount of Common Stock
that may be purchased by the Subscriber is $25,000 unless Trafficlogic and the
Company waive the minimum purchase requirement. The consummation of the Offering
is subject to the satisfaction of a number of conditions, as further described
in the Offering Memorandum, one or more of which conditions may not occur.
1.3 The Purchase Price will be placed in escrow pursuant to an escrow
agreement by and among, the Company, Trafficlogic and McGuireWoods LLP as escrow
agent (the "Escrow Agreement") and shall be paid over to the Company at the
closing of the purchase of the Common Stock in the Offering (the "Closing") to
occur on the Closing Date.
1.4 The certificates for the Common Stock bearing the name of the
Subscriber will be delivered by the Company no later than fifteen (15) days
following the Closing Date. The Subscriber hereby authorizes and directs the
Company to deliver the securities to be issued to such Subscriber pursuant to
this Subscription Agreement to the residential or business address indicated in
the Investor Questionnaire attached hereto as Exhibit A (the "Investor
Questionnaire").
1.5 The Purchase Price for the Common Stock purchased hereunder shall be
paid only by (i) certified check, payable to McGuireWoods LLP, as escrow agent
or (ii) by wire transfer to McGuireWoods LLP pursuant to the following
instructions:
BANK OF AMERICA
ABA: 000000000 (Domestic Wires)
Swift Code: XXXXXX0X (International Wires)
Credit: McGuireWoods LLP IOLTA Account
Account Number: 2101206537
Reference: (Xxxxx X. Xxxxx / 2043356-0001)
Trafficlogic/MAC Subscription Escrow
McGuireWoods Accounting Contact: Xxxxxxxx X. Xxxxx (000) 000-0000
Bank Contact: Xxxxxxx Xxxxx (000) 000-0000, Opt. 2, Ext. 21600
1.6 The Company and Trafficlogic may, in their sole discretion, reject any
subscription, in whole or in part, or terminate or withdraw the Offering in its
entirety at any time prior to a closing thereof. The Company shall not be
required to allocate shares of Common Stock among investors on a pro rata, or
any other, basis in the event of over-subscription therefor.
2. Representations and Covenants of Subscriber
2.1 The Subscriber recognizes that the purchase of Common Stock involves a
high degree of risk in that (i) the Company will need additional capital but has
no assurance of obtaining such additional necessary capital; (ii) an investment
in the Company is highly speculative and only investors who can afford the loss
of their entire investment should consider investing in the Company and the
Common Stock; (iii) an investor may not be able to liquidate his investment;
(iv) transferability of the Common Stock is extremely limited; and (v) an
investor could sustain the loss of his entire investment, as well as other risk
factors, as more fully set forth herein and in the Offering Memorandum.
2.2 The Subscriber represents that he is an "accredited investor" as such
term is defined in Rule 501 of Regulation D promulgated under the Act, as
indicated by his responses to the Investor Questionnaire, and that he or it is
able to bear the economic risk of an investment in the Common Stock. The
Subscriber must complete the Investor Questionnaire to enable the Company and
Trafficlogic to access the Subscriber's eligibility for the Offering.
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2.3 The Subscriber acknowledges that he has prior investment experience,
including investment in non-listed and non-registered securities, or he has
employed the services of an investment advisor, attorney or accountant to read
all of the documents furnished or made available by the Company or Trafficlogic
both to him and to all other prospective investors in the Common Stock and to
evaluate the merits and risks of such an investment on his behalf, and that he
recognizes the highly speculative nature of this investment.
2.4 The Subscriber acknowledges receipt and careful review of the Offering
Memorandum, this Subscription Agreement, and the attachments hereto and thereto
(collectively, the "Offering Documents") and hereby represents that he has been
furnished or given access by the Company or Trafficlogic during the course of
this Offering with or to all information regarding the Company and Trafficlogic
and their respective financial conditions and results of operations which he had
requested or desired to know; that all documents which could be reasonably
provided have been made available for his inspection and review; that he has
been afforded the opportunity to ask questions of and receive answers from duly
authorized representatives of the Company and Trafficlogic concerning the terms
and conditions of the Offering, and any additional information which he had
requested.
2.5 The Subscriber acknowledges that this Offering of Common Stock may
involve tax consequences, and that the contents of the Offering Documents do not
contain tax advice or information. The Subscriber acknowledges that he must
retain his own professional advisors to evaluate the tax and other consequences
of an investment in the Common Stock.
2.6 The Subscriber acknowledges that this Offering of Common Stock has not
been reviewed or approved by the United States Securities and Exchange
Commission ("SEC") because the Offering is intended to be a nonpublic offering
pursuant to Section 4(2) of the Act. The Subscriber represents that the Common
Stock is being purchased for his own account, for investment and not for
distribution or resale to others. The Subscriber agrees that he will not sell or
otherwise transfer the Common Stock unless it is registered under the Act or
unless an exemption from such registration is available and, upon the Company's
request, the Company receives an opinion of counsel reasonably satisfactory to
the Company confirming that an exemption from such registration is available for
such sale or transfer.
2.7 The Subscriber understands that the Common Stock has not been
registered under the Act by reason of a claimed exemption under the provisions
of the Act which depends, in part, upon his investment intention. The Subscriber
realizes that, in the view of the SEC, a purchase now with an intent to
distribute would represent a purchase with an intent inconsistent with his
representation to the Company, and the SEC might regard such a distribution as a
deferred sale to which such exemption is not available.
2.8 The Subscriber understands that Rule 144 ("Rule 144") promulgated
under the Act requires, among other conditions, a one year holding period prior
to the resale (in limited amounts) of securities acquired in a non-public
offering, such as the Offering, without having to satisfy the registration
requirements under the Act. The Subscriber understands that the Company makes no
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representation or warranty regarding its fulfillment in the future of any
reporting requirements under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or its dissemination to the public of any current
financial or other information concerning the Company, as is required by Rule
144 as one of the conditions of its availability. The Subscriber consents that
the Company may, if it desires, permit the transfer of the Common Stock out of
his name only when his request for transfer is accompanied by an opinion of
counsel reasonably satisfactory to the Company that neither the sale nor the
proposed transfer results in a violation of the Act or any applicable state
"blue sky" laws (collectively, "Securities Laws"). The Subscriber agrees to hold
the Company, Trafficlogic and their respective directors, officers and
controlling persons and their respective heirs, representatives, successors and
assigns harmless and to indemnify them against all liabilities, costs and
expenses incurred by them as a result of any misrepresentation made by him
contained herein or in the Investor Questionnaire or any sale or distribution by
the undersigned Subscriber in violation of any Securities Laws.
2.9 The Subscriber consents to the placement of one or more legends on any
certificate or other document evidencing his Common Stock stating that it has
not been registered under the Act and setting forth or referring to the
restrictions on transferability and sale thereof.
2.10 The Subscriber understands that the Company and Trafficlogic will
review this Subscription Agreement and the Investor Questionnaire and are hereby
given authority by the undersigned to call his bank or place of employment or
otherwise review the financial standing of the Subscriber; and it is further
agreed that the Company and Trafficlogic reserve the unrestricted right to
reject or limit any subscription and to close the offer at any time.
2.11 The Subscriber hereby represents that the address of Subscriber
furnished by him at the end of this Subscription Agreement and in the Investor
Questionnaire is the undersigned's principal residence if he is an individual or
its principal business address if it is a corporation or other entity.
2.12 The Subscriber acknowledges that if the Subscriber is a Registered
Representative of a National Association of Securities Dealers, Inc. ("NASD")
member firm, he must give such firm the notice required by the NASD Conduct
Rules, or any applicable successor rules of the NASD, receipt of which must be
acknowledged by such firm on the signature page hereof. The Subscriber shall
also notify the Company if the Subscriber or any affiliate of Subscriber is a
registered broker-dealer with the SEC, in which case the Subscriber represents
that the Subscriber is purchasing the Common Stock in the ordinary course of
business and, at the time of purchase of the Common Stock, has no agreements or
understandings, directly or indirectly, with any person to distribute the Common
Stock or any portion thereof.
2.13 The Subscriber hereby represents that, except as set forth in the
Offering Documents, no representations or warranties have been made to the
Subscriber by either the Company or Trafficlogic or their agents, employees or
affiliates and in entering into this transaction, the Subscriber is not relying
on any information, other than that contained in the Offering Documents and the
results of independent investigation by the Subscriber.
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2.14 The Subscriber agrees that he will purchase securities in the
Offering only if his intent at such time is to make such purchase for investment
purposes and not with a view toward resale.
2.15 If the undersigned Subscriber is a partnership, corporation, trust or
other entity, such partnership, corporation, trust or other entity further
represents and warrants that: (i) it was not formed for the purpose of investing
in the Company; (ii) it is authorized and otherwise duly qualified to purchase
and hold the Common Stock; and (iii) that this Subscription Agreement has been
duly and validly authorized, executed and delivered and constitutes the legal,
binding and enforceable obligation of the undersigned.
2.16 If the Subscriber is not a United States person, such Subscriber
hereby represents that it has satisfied itself as to the full observance of the
laws of its jurisdiction in connection with any invitation to subscribe for the
Common Stock or any use of this Subscription Agreement, including (i) the legal
requirements within its jurisdiction for the purchase of the Common Stock, (ii)
any foreign exchange restrictions applicable to such purchase, (iii) any
governmental or other consents that may need to be obtained, and (iv) the income
tax and other tax consequences, if any, that may be relevant to the purchase,
holding, redemption, sale or transfer of the Common Stock. Such Subscriber's
subscription and payment for, and his or her continued beneficial ownership of
the Common Stock will not violate any applicable securities or other laws of the
Subscriber's jurisdiction.
2.17 The undersigned hereby covenants and agrees that it will not have an
open position (e.g., short sale) in the Common Stock prior to the Registration
Statement (as defined below) being declared effective by the SEC with the intent
of covering such open position with Common Stock being registered in the
Registration Statement. The undersigned hereby acknowledges and understands that
the SEC has taken the position that such an open position would constitute a
violation of Section 5 of the Act.
2.18 The Subscriber acknowledges that (i) the Offering Memorandum contains
material, non-public information concerning the Company within the meaning of
Regulation FD promulgated by the SEC, and (ii) the Subscriber is obtaining such
material, non-public information solely for the purpose of considering whether
to purchase the Common Stock pursuant to a private placement that is exempt from
registration under the Act. In accordance with Regulation FD, the Subscriber
agrees to keep such information confidential and not to disclose it to any other
person or entity except the Subscriber's legal counsel, other advisors and other
representatives who have agreed to (X) keep such information confidential, (Y)
use such information only for the purpose set forth above, and (Z) comply with
applicable securities laws with respect to such information. In addition, the
Subscriber further acknowledges that the Subscriber and such legal counsel,
other advisors and other representatives are prohibited from trading in the
Company's securities while in possession of material, non-public information and
agrees to refrain from purchasing or selling securities of the Company until
such material, non-public information has been publicly disseminated by the
Company. The Subscriber agrees to indemnify and hold harmless the Company and
Trafficlogic and their respective officers, directors, employees, subsidiaries
and affiliates and each other person, if any, who controls any of the foregoing,
against any loss, liability, claim, damage and expense whatsoever (including,
but not limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation commenced or
threatened or any claim whatsoever) arising out of or based upon any false
representation or warranty by the Subscriber, or the Subscriber's breach of, or
failure to comply with, any covenant or agreement made by the Subscriber herein
or in any other document furnished by the Subscriber to the Company or its
officers, directors, employees or affiliates or each other person, if any, who
controls any of the foregoing in connection with this transaction.
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2.19 The Subscriber understands and acknowledges that (i) the Common Stock
is being offered and sold to Subscriber without registration under the Act in a
private placement that is exempt from the registration provisions of the Act
under Section 4(2) of the Act and (ii) the availability of such exemption
depends in part on, and that the Company will rely upon the accuracy and
truthfulness of, the foregoing representations, and such Subscriber hereby
consents to such reliance.
3. Representations by the Company and Trafficlogic
Except as set forth in the reports filed by the Company pursuant to the
Exchange Act (the "SEC Reports"), each of the Company and, as applicable,
Trafficlogic severally represent and warrant to the Subscriber that:
3.1 Organization and Authority. The Company and Trafficlogic, and each of
their respective subsidiaries, (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as presently
conducted, and (iii) has all requisite corporate power and authority to execute,
deliver and perform their obligations under this Subscription Agreement and the
Offering Documents being executed and delivered by it in connection herewith,
and to consummate the transactions contemplated hereby and thereby.
3.2 Qualifications. The Company and Trafficlogic, and each of their
respective subsidiaries, is duly qualified to do business as a foreign
corporation and is in good standing in all jurisdictions where such
qualification is necessary and where failure so to qualify could have a material
adverse effect on the business, properties, operations, condition (financial or
other), results of operations or prospects of the Company and Trafficlogic, and
each of their respective subsidiaries, taken as a whole.
3.3 Capitalization of the Company. The capitalization of the Company as of
November 16, 2004, is as described in the Company's Form 10-QSB for the nine
months ended September 30, 2004. The Company has not issued any capital stock
since such date other than pursuant to the conversion or exercise of outstanding
common stock equivalents or as contemplated by the Merger Agreement. No person
has any right of first refusal, preemptive right, right of participation, or any
similar right to participate in the transactions contemplated by the Offering
Documents. Except as a result of the purchase and sale of the Common Stock, as
contemplated in the Merger Agreement or as disclosed in the SEC Reports, there
are no outstanding options, warrants, script rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities, rights or
obligations convertible into or exchangeable for, or giving any person any right
to subscribe for or acquire from the Company, any shares of Common Stock, or
contracts, commitments, understandings or arrangements by which the Company or
any subsidiary is or may become bound to issue additional shares of Common
Stock, or securities or rights convertible or exchangeable into shares of Common
Stock. The issuance and sale of the Common Stock will not obligate the Company
to issue shares of Common Stock or other securities to any person (other than
the Subscribers) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset price under
such securities. The outstanding shares of capital stock of the Company have
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been duly authorized and validly issued and are fully paid and nonassessable.
None of the outstanding shares of Common Stock or options, warrants, or rights
or other securities entitling the holders to acquire Common Stock has been
issued in violation of the preemptive rights of any security holder of the
Company. No holder of any of the Company's securities has any rights, "demand,"
"piggy-back" or otherwise, to have such securities registered by reason of the
intention to file, filing or effectiveness of the Registration Statement (as
defined below). The Common Stock to be issued to the Subscriber has been duly
authorized, and when issued and paid for in accordance with this Subscription
Agreement will be duly and validly issued, fully paid and non-assessable. The
Common Stock is eligible for quotation on the NASD OTC Bulletin Board, the
Company and the Common Stock meet the criteria for continued quotation and
trading on the OTC Bulletin Board, and no suspension of trading in the Common
Stock is in effect.
3.4 Corporate Authorization. The Offering Documents have been duly and
validly authorized by the Company and Trafficlogic. This Subscription Agreement,
assuming due execution and delivery by the Subscriber, when executed and
delivered by the Company and Trafficlogic, will be, valid and binding
obligations of the Company and Trafficlogic enforceable in accordance with their
respective terms, except as the enforceability hereof and thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting creditors' rights generally and
general principles of equity, regardless of whether enforcement is considered in
a proceeding in equity or at law.
3.5 Non-Contravention. The execution and delivery of the Offering
Documents by the Company and Trafficlogic, the issuance of the Common Stock as
contemplated by the Offering Documents and the completion by the Company and
Trafficlogic of the other transactions contemplated by the Offering Documents do
not and will not, with or without the giving of notice or the lapse of time, or
both, (i) result in any violation of any provision of the articles of
incorporation or by-laws or similar instruments of the Company or Trafficlogic
or their respective subsidiaries, (ii) conflict with or result in a breach by
the Company or Trafficlogic or their respective subsidiaries of any of the terms
or provisions of, or constitute a default under, or result in the modification
of, or result in the creation or imposition of any lien, security interest,
charge or encumbrance upon any of the properties or assets of the Company or
Trafficlogic or their respective subsidiaries pursuant to, any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company or
Trafficlogic or any of their respective subsidiaries is a party or by which the
Company or Trafficlogic or any of their respective subsidiaries or any of their
respective properties or assets are bound or affected, in any such case which
would have a material adverse effect on the business, properties, operations,
condition (financial or other), results of operations or prospects of the
Company and Trafficlogic and their respective subsidiaries, taken as a whole, or
the validity or enforceability of, or the ability of the Company or Trafficlogic
to perform their obligations under, the Offering Documents, (iii) violate or
contravene any applicable law, rule or regulation or any applicable decree,
judgment or order of any court, United States federal or state regulatory body,
administrative agency or other governmental body having jurisdiction over the
Company or Trafficlogic or any of their respective subsidiaries or any of their
respective properties or assets which would have a material adverse effect on
the business, properties, operations, condition (financial or other), results of
operations or prospects of the Company and Trafficlogic and their respective
subsidiaries, taken as a whole, or the validity or enforceability of, or the
ability of the Company or Trafficlogic to perform its obligations under, the
Offering Documents, or (iv) have any material adverse effect on any permit,
certification, registration, approval, consent, license or franchise necessary
for the Company or Trafficlogic or their respective subsidiaries to own or lease
and operate any of its properties and to conduct any of its business or the
ability of the Company or Trafficlogic or any of their respective subsidiaries
to make use thereof.
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3.6 Information Provided. The Company hereby represents and warrants to
the Subscriber that the Offering Memorandum, the SEC Reports and any other
information provided by or on behalf of the Company to the Subscriber in
connection with the transactions contemplated by this Subscription Agreement,
does not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading, it being understood
that for purposes of this Section 3.6, any statement contained in such
information shall be deemed to be modified or superseded for purposes of this
Section 3.6 to the extent that a statement in any document included in such
information which was prepared and furnished to the Subscriber on a later date
or filed with the SEC on a later date modifies or replaces such statement,
whether or not such later prepared and furnished or filed statement so states.
Trafficlogic hereby represents and warrants to the Subscriber that the Offering
Memorandum and any other information provided by or on behalf of Trafficlogic to
the Subscriber in connection with the transactions contemplated by this
Subscription Agreement, does not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading.
3.7 Absence of Certain Proceedings. Except as disclosed in the SEC
Reports, there is no action, suit, proceeding, inquiry or investigation before
or by any court, public board or body, or governmental agency pending or, to the
knowledge of the Company or Trafficlogic, threatened against or affecting the
Company or Trafficlogic or any of their respective subsidiaries, in any such
case wherein an unfavorable decision, ruling or finding would have a material
adverse effect on the business, properties, operations, condition (financial or
other), results of operations or prospects of the Company or Trafficlogic, or
the transactions contemplated by the Offering Documents or which could adversely
affect the validity or enforceability of, or the authority or ability of the
Company or Trafficlogic to perform its obligations under, the Offering
Documents; and to the best of the Company's and Trafficlogic's knowledge there
is not pending or contemplated any, and there has been no, investigation by the
SEC involving the Company or Trafficlogic or any of their current or former
directors or officers.
3.8 Compliance with Law. Neither the Company nor Trafficlogic nor any of
their respective subsidiaries is in violation of or has any liability under any
statute, law, rule, regulation, ordinance, decision or order of any governmental
agency or body or any court, domestic or foreign, except where such violation or
liability would not individually or in the aggregate have a material adverse
effect on the business, properties, operations, condition (financial or other),
results of operations or prospects of the Company and its subsidiaries, taken as
a whole; and to the knowledge of the Company and Trafficlogic there is no
pending investigation which would reasonably be expected to lead to such a
claim.
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3.9 Tax Matters. The Company and Trafficlogic and each of their respective
subsidiaries has filed all federal, state and local income and franchise tax
returns required to be filed and has paid all taxes shown by such returns to be
due, and no tax deficiency has been determined adversely to the Company or
Trafficlogic or any of their respective subsidiaries which has had (nor does the
Company or Trafficlogic or any of their respective subsidiaries have any
knowledge of any tax deficiency which, if determined adversely to the Company or
Trafficlogic or any of their respective subsidiaries, might have) a material
adverse effect on the business, properties, operations, condition (financial or
other), results of operations, or prospects of the Company or Trafficlogic or
any of their respective subsidiaries, taken as a whole.
4. Registration Rights
4.1 Registration Requirement. The Company shall file a registration
statement on Form SB-2 or other appropriate registration document under the Act
(the "Registration Statement") for resale of the Common Stock (the "Registrable
Securities") and shall use its reasonable best efforts to maintain the
Registration Statement effective, at the Company's expense, for a period of
twenty-four (24) months after it is declared effective by the SEC (the
"Effectiveness Period"). The Company shall file such Registration Statement no
later than sixty (60) days after the Closing Date, and shall use reasonable best
efforts to cause such Registration Statement to become effective within one
hundred and fifty (150) days after the Closing Date. Failure to timely file the
Registration Statement or obtain its effectiveness within 150 days of the
Closing Date shall require the Company to make a cash payment, as liquidated
damages, to the Subscriber of 1% of the Purchase Price of the Common Stock sold
to the Subscriber under this Subscription Agreement per month for each full
calendar month of such failure. Prior to the date the Registration Statement is
declared effective, the Company shall not file with the SEC any other new
registration statement under the Act, other than a Form S-4 or a Form S-8
registration statement, with respect to any securities of the Company.
4.2 Limitation to Registration Requirement. Notwithstanding the foregoing,
the Company shall not be obligated to take any action pursuant to this Section
in any particular jurisdiction in which the Company would be required to execute
a general consent to service of process in effecting such registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction and except as may be required by the Act.
4.3 Expenses of Registration. Except as otherwise expressly set forth, the
Company shall bear all expenses incurred by the Company in compliance with the
registration obligation of the Company, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company incurred in connection with any registration,
qualification or compliance pursuant to this Subscription Agreement and all
underwriting discounts, selling commissions and expense allowances applicable to
the sale of any securities by the Company for its own account in any
registration. All underwriting discounts, selling commissions and expense
allowances applicable to the sale by Subscriber of Registrable Securities and
all fees and disbursements of counsel for the Subscriber shall be borne by the
Subscriber.
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4.4 Indemnification.
(a) To the extent permitted by law the Company will indemnify each
Subscriber, each of its officers, directors, agents, employees and partners, and
each person controlling such Subscriber, with respect to each registration,
qualification or compliance effected pursuant to this Subscription Agreement,
and each underwriter, if any, and each person who controls any underwriter, and
their respective counsel against all claims, losses, damages and liabilities (or
actions, proceedings or settlements in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other document prepared by the
Company (including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of the Act or any rule or regulation thereunder
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or compliance,
and will reimburse each such Subscriber, each of its officers, directors,
agents, employees and partners, and each person controlling such Subscriber,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses as they are reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement (or alleged untrue statement) or omission (or alleged
omissions) based upon written information furnished to the Company by such
Subscriber or underwriter; provided, however, that the indemnity agreement
contained in this subsection shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability or action to the extent that it arises out of or is
based upon a violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by such Subscriber, partner, officer, director, employee, agent,
underwriter or controlling person of such Subscriber, provided, however, that
the obligations of the Company hereunder shall be limited to an amount equal to
the portion of net proceeds represented by the Registrable Securities pursuant
to this Subscription Agreement.
(b) To the extent permitted by law, each Subscriber whose
Registrable Securities are included in any registration, qualification or
compliance effected pursuant to this Subscription Agreement will indemnify the
Company and Trafficlogic and their respective directors, officers, agents,
employees, subsidiaries, affiliates and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of the Act and the
rules and regulations thereunder, each other such Subscriber and each of their
officers, directors, partners, agents and employees, and each person controlling
such Subscriber, and their respective counsel against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or
other document, or any omission (or alleged omission) to state therein a
10
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company and Trafficlogic and such
Subscribers, directors, officers, partners, persons, underwriters or control
persons for any legal or any other expenses as they are reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by such Subscriber; provided, however, that the
obligations of any Subscriber hereunder shall be limited to an amount equal to
the net proceeds to such Subscriber from Registrable Securities sold under such
registration statement, prospectus, offering circular or other document as
contemplated herein; provided, further, that the indemnity agreement contained
in this subsection shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Subscriber, which consent shall not be unreasonably withheld
or delayed.
(c) Each party entitled to indemnification under this Section (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld or delayed), and the Indemnified Party may participate
in such defense at such Indemnified Party's expense; and provided further that
if any Indemnified Party reasonably concludes that there may be one or more
legal defenses available to it that are not available to the Indemnifying Party,
or that such claim or litigation involves or could have an effect on matters
beyond the scope of this Subscription Agreement, then the Indemnified Party may
retain its own counsel at the expense of the Indemnifying Party; and provided
further that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Subscription Agreement unless and only to the extent that such failure to give
notice results in material prejudice to the Indemnifying Party. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this Section is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to herein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
11
Party on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
4.5 Transfer or Assignment of Registration Rights. The benefits to the
Subscriber hereunder may be transferred or assigned by the Subscriber to a
permitted transferee or assignee of any of the Registrable Securities, provided
that the Company is given written notice that such right has been transferred,
stating the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned; provided further that the transferee or assignee of such rights
shall be deemed to have assumed the obligations of the Subscriber under this
Subscription Agreement by the acceptance of such assignment and shall, upon
request from the Company, evidence such assumption by delivery to the Company of
a written agreement assuming such obligations of the Subscriber.
4.6 Registration Procedures. In the case of the registration effected by
the Company pursuant to this Subscription Agreement, the Company will keep the
Subscriber advised in writing as to the initiation of each registration and as
to the completion thereof. The Company will:
(a) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of securities covered by such registration
statement;
(b) Respond as promptly as reasonably practicable to any comments
received from the SEC with respect to a registration statement or any amendment
thereto;
(c) Notify the Subscriber as promptly as reasonably practicable and
(if requested by any such person) confirm such notice in writing no later than
one trading day following the day (A) when a prospectus or any prospectus
supplement or post-effective amendment to a registration statement is proposed
to be filed and (B) with respect to a registration statement or any
post-effective amendment, when the same has become effective;
(d) Furnish such number of prospectuses and other documents incident
thereto, including supplements and amendments, as the Subscriber may reasonably
request;
(e) Furnish to the Subscriber, upon request, a copy of all documents
filed with and all correspondence from or to the SEC in connection with any such
registration statement other than non-substantive cover letters and the like, to
the extent such items do not constitute material, non-public information;
12
(f) Use its reasonable best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (i) any order suspending the effectiveness of a
registration statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment; and
(g) Use its reasonable best efforts to comply with all applicable
rules and regulations of the SEC.
Notwithstanding the foregoing, if at any time or from time to time after
the date of effectiveness of the Registration Statement, the Company notifies
the Subscriber in writing of the existence of an event or circumstance that is
not disclosed in the Registration Statement and that may have a material effect
on the Company or its business (a "Potential Material Event"), the Subscriber
shall not offer or sell any Registrable Securities, or engage in any other
transaction involving or relating to the Registrable Securities, from the time
of the giving of notice with respect to a Potential Material Event until the
Company notifies the Subscriber that such Potential Material Event either has
been added to the Registration Statement by amendment or supplement or no longer
constitutes a Potential Material Event; provided, that the Company may not so
suspend the right of Subscriber for more than 120 days in the aggregate.
4.7 Statement of Beneficial Ownership. The Company may require the
Subscriber to furnish to the Company a certified statement as to the number of
shares of Common Stock beneficially owned by such Subscriber and the controlling
person thereof and any other such information regarding the Subscriber, the
Registrable Securities held by the Subscriber and the intended method of
disposition of such securities as shall be reasonably required with respect to
the registration of the Subscriber's Registrable Securities. The Subscriber
hereby understands and agrees that the Company may, in its sole discretion,
exclude the Subscriber's shares of Common Stock from the Registration Statement
in the event that the Subscriber fails to provide such information within ten
(10) trading days of the request therefor by the Company.
4.8 Compliance. Subscriber covenants and agrees that such Subscriber will
comply with the prospectus delivery requirements of the Act as applicable to
such Subscriber in connection with sales of Registrable Securities pursuant to
the Registration Statement required hereunder.
5. Miscellaneous
5.1 Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, addressed to the Company, at MAC Worldwide, Inc at 0000
Xxxxxxx Xxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000 Attention: Xxxxxxx Xxxxxxx, with a
copy to (which copy shall not be deemed to provide notice) Gottbetter &
Partners, LLP, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xx. Xxxx Xxxxxxxxxx, Esq., and to the Subscriber at his address
indicated on the signature page of this Subscription Agreement. Notices shall be
deemed to have been given three (3) business days after the date of mailing,
except notices of change of address, which shall be deemed to have been given
when received.
13
5.2 This Subscription Agreement may be amended through a written
instrument signed by the Subscriber, Trafficlogic and the Company; provided,
however, that the terms of Section 4 of this Subscription Agreement may be
amended without the consent or approval of the Subscriber so long as such
amendment applies in the same fashion to the subscription agreements of all of
the other subscribers for Common Stock in the Offering and at least holders of a
majority of the Common Stock sold in the Offering have given their approval of
such amendment, which approval shall be binding on all holders of Common Stock.
5.3 This Subscription Agreement shall be binding upon and inure to the
benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns. This Subscription Agreement sets forth
the entire agreement and understanding between the parties as to the subject
matter hereof and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them.
5.4 Notwithstanding the place where this Subscription Agreement may be
executed by any of the parties hereto, the parties expressly agree that all the
terms and provisions hereof shall be construed in accordance with and governed
by the laws of the State of New York.
5.5 This Subscription Agreement may be executed in counterparts. It shall
not be binding upon the Company and Trafficlogic unless and until it is accepted
by the Company and Trafficlogic. Upon the execution and delivery of this
Subscription Agreement by the Subscriber, this Subscription Agreement shall
become a binding obligation of the Subscriber with respect to the purchase of
Common Stock as herein provided; subject, however, to the right hereby reserved
to the Company to enter into the same agreements with other subscribers and to
add or to delete other persons as subscribers.
5.6 The holding of any provision of this Subscription Agreement to be
invalid or unenforceable by a court of competent jurisdiction shall not affect
any other provision of this Subscription Agreement, which shall remain in full
force and effect.
5.7 It is agreed that a waiver by either party of a breach of any
provision of this Subscription Agreement shall not operate, or be construed, as
a waiver of any subsequent breach by that same party.
5.8 The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this
Subscription Agreement.
5.9 The Company agrees not to disclose the names, addresses or any other
information about the Subscribers, except as required by law, provided that the
Company may provide information relating to the Subscriber as required in any
registration statement under the Act that may be filed by the Company pursuant
to the requirements of this Subscription Agreement.
5.10 The obligation of the Subscriber hereunder is several and not joint
with the obligations of any other subscribers for the purchase of Common Stock
in the Offering (the "Other Subscribers"), and the Subscriber shall not be
responsible in any way for the performance of the obligations of any Other
Subscribers. Nothing contained herein or in any other agreement or document
14
delivered at the Closing, and no action taken by the Subscriber pursuant hereto,
shall be deemed to constitute the Subscriber and the Other Subscribers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Subscriber and the Other Subscribers are in any
way acting in concert with respect to such obligations or the transactions
contemplated by this Subscription Agreement. The Subscriber shall be entitled to
protect and enforce the Subscriber's rights, including without limitation the
rights arising out of this Subscription Agreement, and it shall not be necessary
for any Other Subscriber to be joined as an additional party in any proceeding
for such purpose. 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. The Subscriber is not
acting as part of a "group" (as that term is used in Section 13(d) of the 0000
Xxx) in negotiating and entering into this Subscription Agreement or purchasing
the Common Stock or acquiring, disposing of or voting any of the underlying
shares of Common Stock or the Warrant Shares. The Company hereby confirms that
it understands and agrees that the Subscriber is not acting as part of any such
group.
[SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, the parties have executed this Subscription Agreement
as of the day and year first written above.
------------------------------ ------------------------------------
Signature of Subscriber Signature of Co-Subscriber
------------------------------ ------------------------------------
Name of Subscriber Name of Co-Subscriber
[please print] [please print]
------------------------------ ------------------------------------
Xxxxxx Xxxxxxx xx Xxxxxxxxxx Xxxxxx Xxxxxxx of Co-Subscriber
------------------------------ ------------------------------------
City, State and Zip Code of Subscriber City, State and Zip Code of Co-Subscriber
------------------------------ ------------------------------------
Social Security or Taxpayer Social Security or Taxpayer Identification
Identification Number of Subscriber Number of Co-Subscriber
------------------------------
Number of Shares of Common Stock
Subscribed For
Subscription Agreed to and Accepted by
MAC WORLDWIDE, INC. TRAFFICLOGIC, INC.
By: By:
-------------------------------- ---------------------------------
Name: Name:
------------------------------ -------------------------------
Title: Title:
----------------------------- ------------------------------
Date: Date:
------------------------------ -------------------------------
16
Exhibit A-1
Corporate Investor Questionnaire
--------------------------------------------------------------------------------
Name: ________________________________________
--------------------------------------------------------------------------------
IMPORTANT:
Please Complete
CORPORATE INVESTOR QUESTIONNAIRE
----------------------
MAC WORLDWIDE, INC.
TRAFFICLOGIC, INC.
----------------------
MAC Worldwide, Inc.
c/o Gottbetter & Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
Trafficlogic, Inc.
0000 Xxx Xxx Xxxxxx
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
The information furnished by you in this Corporate Investor Questionnaire
(this "Questionnaire") is being furnished in order to determine whether the
undersigned Corporation's, or Partnership's or Limited Liability Company's, or
other entity's (hereinafter referred to as the "Entity") subscription to
purchase Common Stock (the "Common Stock") described in the Confidential
Offering Memorandum, dated December __, 2004, of Trafficlogic, Inc.
("Trafficlogic") and MAC Worldwide, Inc. (the "Company") may proceed.
One (1) copy of this Questionnaire should be completed, signed, dated and
delivered to Xxxxx X. Xxxxx, Esq. counsel to Trafficlogic, at McGuireWoods, LLP
at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxx
Xxxxx at (000) 000-0000 if you have any questions with respect to this
Questionnaire.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned Entity 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 and sale of the Common Stock is exempt
A1-1
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 Entity understands that the offering required to be reported to the
Securities and Exchange Commission and to various state securities or "blue sky"
regulators.
I. PLEASE CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLY TO THE ENTITY:
|_| 1. Each of the shareholders/partners/members of the
undersigned Entity is able to certify that such
shareholder/partner/member meets at least one of the following
two conditions:
(a) The shareholder/partner/member is a natural person
whose individual net worth* or joint net worth with
his or her spouse exceeds $1,000,000; or
(b) The shareholder/partner/member is a natural person
who had an individual income* in excess of $200,000
in each of the previous two years and who reasonably
expects an individual income in excess of $200,000
this year.
|_| 2. Each of the shareholders/partners/members of the
undersigned Entity is able to certify that such
shareholder/partner/member is a natural person who, together
with his or her spouse, has had a joint income* in excess of
$300,000 in each of the previous two years and who reasonably
expects a joint income in excess of $300,000 this year.
|_| 3. The undersigned Entity: (a) was not formed for the specific
purpose of acquiring the Common Stock; and (b) has total
assets in excess of $5,000,000.
--------
* 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 partner in any
limited partnership, deductions claimed for depletion,
contributions to XXX or Xxxxx retirement plans, alimony
payments and any amount by which income from long-term capital
gains has been reduced in arriving at adjusted gross income.
A1-2
--------------------------------------------------------------------------------
IF YOU CHECKED STATEMENT 1 OR STATEMENT 2 IN SECTION I AND DID NOT CHECK
STATEMENT 3, YOU MUST PROVIDE A LETTER EXECUTED BY AN OFFICER OF THE UNDERSIGNED
ENTITY LISTING THE NAME OF EACH SHAREHOLDER/PARTNER/MEMBER OF THE ENTITY AND THE
REASON (UNDER STATEMENT 1 OR STATEMENT 2) WHY SUCH SHAREHOLDER/PARTNER/MEMBER
QUALIFIES AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL
INCOME OR JOINT INCOME), OR EACH SHAREHOLDER/PARTNER/MEMBER MUST PROVIDE A
COMPLETED INDIVIDUAL INVESTOR QUESTIONNAIRE (PROVIDED ON PAGES A-1 TO A-6).
--------------------------------------------------------------------------------
II. OTHER CERTIFICATIONS
By signing the Signature Page, the undersigned Entity certifies the
following:
(a) that the Entity's purchase of Common Stock will be solely for
the Entity's own account and not for the account of any other
person or entity;
(b) that the Entity's name, address of principal office, state of
incorporation or organization and tax identification number as
set forth in this Questionnaire are true, correct and
complete; and
(c) that one of the following is true and correct (check one):
|_| (i) the Entity is an entity organized in or
under the laws of the United States or any
political subdivision thereof.
|_| (ii) the Entity is an corporation which is
neither created nor organized in or under
the United States or any political
subdivision thereof, but which has made an
election under either Section 897(i) or
897(k) of the United States Internal
Revenue Code of 1986, as amended, to be
treated as a domestic corporation for
certain purposes of United States federal
income taxation (A COPY OF THE INTERNAL
REVENUE SERVICE ACKNOWLEDGMENT OF THE
UNDERSIGNED'S ELECTION MUST BE ATTACHED TO
THIS QUESTIONNAIRE IF THIS PROVISION IS
APPLICABLE).
|_| (iii) neither (i) nor (ii) above is true.
A1-3
III. GENERAL INFORMATION
(a) PROSPECTIVE PURCHASER (The Entity)
Name: _______________________________________________________________________
Principal Place of Business: ___________________________________________________
(Number and Street)
------------------------------------------------------------------------------
(City) (State) (Zip Code)
Address for Correspondence (if different): ____________________________________
(Number and Street)
------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number: ____________________________________________________________
(Area Code) (Number)
Facsimile Number: ____________________________________________________________
(Area Code) (Number)
State of Incorporation/Organization: ____________________________________
Date of Formation: _____________________________________________________
Taxpayer Identification Number: ____________________________________________
NASD Affiliation or Association of the Corporation, if any: __________________
If none, check here |_|
Number of Shareholders/Partners/Members: ____________________________________
(b) INDIVIDUAL WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
ENTITY
Name: _______________________________________________________________________
Position or Title: _____________________________________________________
A1-4
IV. BENEFICIAL OWNERSHIP
List the name, address, title, phone number and email address of the
natural person or persons who will possess voting and investment power
over the Common Stock subscribed for herein:
Name of Natural Person(s):
--------------------------------------------
Address:
--------------------------------------------------------------
Title (if any):
-----------------------------------------------------
Phone:
--------------------------------------------------------------
Email address (if any):
-----------------------------------------------
IV. SIGNATURE
The Signature Page to this Questionnaire is contained on page A1-6, entitled
Corporate Signature Page.
A1-5
Corporate Signature Page
-------------------------
MAC WORLDWIDE, INC.
TRAFFICLOGIC, INC.
------------------------
1. The undersigned Entity represents that (a) the information contained in
this Questionnaire is complete and accurate and (b) the Entity will notify Xxxxx
X. Xxxxx, Esq., counsel to Trafficlogic, at McGuireWoods, LLP, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (000) 000-0000 immediately if any
material change in any of the information occurs prior to the acceptance of the
undersigned Entity's subscription and will promptly send to Xxxxx Xxxxx at the
address above written confirmation of such change.
2. The undersigned Entity hereby represents and warrants that the person
signing this Questionnaire on behalf of the Entity has been duly authorized by
all requisite action on the part of the Entity to acquire the Common Stock and
sign this Questionnaire and this Subscription Agreement on behalf of the Entity
and, further, that the undersigned Entity has all requisite authority to
purchase the Common Stock and enter into the Subscription Agreement.
------------------------------------
Date
------------------------------------
Name of Entity
(Please Type or Print)
By: ______________________________
Signature
Name: ______________________________
(Please Type or Print)
Title: ______________________________
(Please Type or Print)
THE SECURITIES COMPRISING THE COMMON STOCK HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL HAS BEEN DELIVERED
TO THE EFFECT THAT REGISTRATION OF SUCH SECURITIES IS NOT REQUIRED.
A1-6
Exhibit A-2
Individual Investor Questionnaire
--------------------------------------------------------------------------------
Name: ________________________________________
--------------------------------------------------------------------------------
IMPORTANT:
Please Complete
INDIVIDUAL INVESTOR QUESTIONNAIRE
-------------------------
MAC WORLDWIDE, INC.
TRAFFICLOGIC, INC.
--------------------------
MAC Worldwide, Inc.
c/o Gottbetter & Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
Trafficlogic, Inc.
0000 Xxx Xxx Xxxxxx
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
The information furnished by you in this Individual Investor Questionnaire
(this "Questionnaire") is being furnished in order to determine whether your
subscription to purchase Common Stock (the "Common Stock") described in the
Confidential Offering Memorandum, dated December __, 2004, of Trafficlogic, Inc.
("Trafficlogic"), and CCP Worldwide, Inc. (the "Company") may proceed.
One (1) copy of this Questionnaire should be completed, signed, dated and
delivered to Xxxxx X. Xxxxx, Esq. counsel to Trafficlogic, at McGuireWoods, LLP
at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxx
Xxxxx at (000) 000-0000 if you have any questions with respect to this
Questionnaire.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned 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 and sale of the Common Stock 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 understands that the offering is required to be reported to the
Securities and Exchange Commission and to various state securities or "blue sky"
regulators.
A2-1
--------------------------------------------------------------------------------
IF YOU ARE PURCHASING COMMON STOCK WITH YOUR SPOUSE, YOU MUST BOTH SIGN THE
SIGNATURE PAGE (PAGE A-6).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IF YOU ARE PURCHASING COMMON STOCK WITH ANOTHER PERSON NOT YOUR SPOUSE, YOU MUST
EACH FILL OUT A SEPARATE QUESTIONNAIRE. Please make a photocopy of pages A2-1
through A2-6 and return both completed Questionnaires to McGuireWoods LLP in the
same envelope.
--------------------------------------------------------------------------------
I. PLEASE INDICATE DESIRED TYPE OF OWNERSHIP OF COMMON STOCK:
|_| Individual
|_| Joint Tenants (rights of survivorship)
|_| Tenants in Common (no rights of survivorship)
II. PLEASE CHECK ANY OF STATEMENTS 1-4 BELOW THAT APPLY TO YOU:
|_| 1. I have an individual net worth* or joint net worth
with my spouse in excess of $1,000,000.
|_| 2. I have had an individual income* in excess of
$200,000 in each of the previous two years and I
reasonably expect an individual income in excess of
$200,000 this year. 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 $300,000 in each of the previous two years and I
reasonably expect a joint income in excess of
$300,000 this year.
|_| 4. I am a director and/or an executive officer of the
Company as such terms are defined in Regulation D
promulgated under the Securities Act of 1933, as
amended.
----------
* 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 partner in any
limited partnership, deductions claimed for depletion,
contributions to XXX or Xxxxx retirement plans, alimony
payments and any amount by which income from long-term capital
gains has been reduced in arriving at adjusted gross income.
A2-2
III. OTHER CERTIFICATIONS
By signing the Signature Page, I certify the following (or, if I am
purchasing Common Stock with my spouse as co-owner, each of us
certifies the following):
(a) that I am at least 21 years of age;
(b) that my purchase of Common Stock will be solely for my own
account and not for the account of any other person (other
than my spouse, if co-owner);
(c) that the name, home address and social security number or
taxpayer identification number as set forth in this
Questionnaire are true, correct and complete; and
(d) that one of the following is true and correct (check one):
Owner Spouse (if Co-Owner)
|_| |_| (i) I am a United States citizen or resident of
the United States for United States federal
income tax purposes.
|_| |_| (ii) I am neither a United States
citizen nor a resident of the United States
for United States federal income tax
purposes.
IV. GENERAL INFORMATION
(a) OWNER INFORMATION
Name: _______________________________________________________________________
Social Security Number: ____________________________________
Residence Address: _____________________________________________________
(Number and Street)
------------------------------------------------------------------------------
(City) (State) (Zip Code)
Residence Telephone Number: ________________________________________________
(Area Code) (Number)
Residence Facsimile Number: ________________________________________________
(Area Code) (Number)
A2-3
Name of Business: ____________________________________________________
Business Address: ____________________________________________________________
(Number and Street)
-----------------------------------------------------------------------------
(City) (State) (Zip Code)
Business Telephone Number: ________________________________________________
(Area Code) (Number)
Business Facsimile Number: ________________________________________________
(Area Code) (Number)
I prefer to have correspondence sent to: |_| Residence |_| Business
NASD Affiliation or Association, if any: ____________________________________
If none, check here |_|
(b) SPOUSE - CO-OWNER INFORMATION
Name: _______________________________________________________________________
Social Security Number: ____________________________________
Residence Address: _____________________________________________________
(Number and Street)
------------------------------------------------------------------------------
(City) (State) (Zip Code)
Residence Telephone Number: ________________________________________________
(Area Code) (Number)
Residence Facsimile Number: ________________________________________________
(Area Code) (Number)
Name of Business: ____________________________________________________
Business Address: ____________________________________________________________
(Number and Street)
-----------------------------------------------------------------------------
(City) (State) (Zip Code)
Business Telephone Number: ________________________________________________
(Area Code) (Number)
A2-4
Business Facsimile Number: ________________________________________________
(Area Code) (Number)
I prefer to have correspondence sent to: |_| Residence |_| Business
NASD Affiliation or Association, if any: ____________________________________
If none, check here |_|
V. SIGNATURE
The Signature Page to this Questionnaire is contained on page A2-6, entitled
Individual Signature Page.
A2-5
INDIVIDUAL SIGNATURE PAGE
------------------------------
MAC WORLDWIDE, INC.
TRAFFICLOGIC, INC.
------------------------------
The undersigned represents that (a) the information contained in this
Questionnaire is complete and accurate, and (b) he/she will telephone Xxxxx X.
Xxxxx, counsel to Trafficlogic at (000) 000-0000 immediately if any material
change in any of this information occurs before the acceptance of his/her
subscription and will promptly send Xxxxx Xxxxx confirmation of such change.
------------------------------------
Date
------------------------------------
Name (Please Type or Print)
------------------------------------
Signature
------------------------------------
Name of Spouse if Co-owner
(Please Type or Print)
------------------------------------
Signature of Spouse if Co-owner
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IF YOU ARE PURCHASING COMMON STOCK WITH YOUR SPOUSE, YOU MUST BOTH SIGN THIS
SIGNATURE PAGE (PAGE A-6).
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IF YOU ARE PURCHASING COMMON STOCK WITH ANOTHER PERSON NOT YOUR SPOUSE, YOU MUST
EACH FILL OUT A SEPARATE QUESTIONNAIRE. Please make a photocopy of pages A-1 to
A-6 and return both completed Questionnaires to McGuireWoods LLP in the same
envelope.
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THE SECURITIES COMPRISING THE COMMON STOCK HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL HAS BEEN
DELIVERED TO THE EFFECT THAT REGISTRATION OF SUCH SECURITIES IS NOT REQUIRED.
A2-6
