Exhibit 4.3
INVESTMENT LETTER AND
SUBSCRIPTION AGREEMENT
DECORIZE, INC.
Decorize, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Re: Decorize, Inc. - Subscription for Common Stock and Warrants
Gentlemen:
1. Subscription. The undersigned (the "Subscriber") intending to
be legally bound, hereby irrevocably subscribes for and agrees to purchase,
subject to the terms and conditions set forth below, the securities (the
"Securities") issued by Decorize, Inc., a Delaware corporation (the
"Corporation") specified on page 7 below. The undersigned hereby tenders
this subscription, together with payment of the total amount (the "Funds")
described on page 7, for the Securities set forth on such page. The Funds
shall be paid in cash or by cashier's check payable to the order of
"Decorize, Inc." or by wire transfer to the Corporation's bank account.
Tender of the Funds and a fully completed and executed copy of this
Investment Letter and Subscription Agreement (this "Agreement") shall be by
delivery of the same to the Corporation at the address shown above.
The undersigned acknowledges that the Corporation reserves the
right, in its sole and absolute discretion, to reject this subscription, in
whole or in part, for any reason. If this subscription is rejected, this
Agreement and signature page shall be null and void and all Funds shall be
returned, with interest. The Subscriber hereby intends that his or her
signature hereon shall constitute an irrevocable subscription to purchase
the Securities specified on page 7. Upon the acceptance of this Agreement
by the Corporation, a copy of the signature page hereof, duly executed by
the Corporation, will be returned to the Subscriber.
2. Subscriber's Status as an Accredited Investor. THE SUBSCRIBER
IS AN "ACCREDITED INVESTOR," AS SUCH TERM IS DEFINED IN RULE 501(a) OF
REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), BY REASON OF QUALIFYING UNDER ONE OR MORE OF THE TESTS
CHECKED BELOW: (CHECK AND INITIAL THE SPACE OR SPACES BELOW THAT APPLY)
/s/ FG (a) Any director, executive officer or general partner of the
---------- Corporation.
Initial if
Applicable
/s/ FG (b) Any natural person whose individual net worth, or joint net
---------- worth with that person's spouse, at the time of his or her
Initial if purchase exceeds $1,000,000.
Applicable
(c) Any private business development company as defined in
---------- Section 202(a)(22) of the Investment Advisors Act of 1940.
Initial if
Applicable
(d) Any natural person who had an individual income in excess of
---------- $200,000 in each of the two most Initial if recent years or
Initial if joint income with that person's spouse in excess of $300,000
Applicable in each of those Applicable years and has a reasonable
expectation of reaching the same income level in the current
year.
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___________ (e) Any organization described in Section 501(c)(3) of the
Initial if Internal Revenue Code, corporation, Massachusetts or similar
Applicable business trust, or Corporation not formed for the specific
purpose of acquiring the Securities, with total assets in
excess of $5,000,000.
___________ (f) Any trust, with total assets in excess of $5,000,000, not
Initial if formed for the specific purpose of acquiring the Securities,
Applicable whose purchase is directed by a sophisticated person as
described in Rule 506(b) of Regulation D of the Securities
Act.
___________ (g) Any entity in which all of the equity owners are Accredited
Initial if Investors.
Applicable
___________ (h) Any employee benefit plan within the meaning of the Employee
Initial if Retirement Income Security Act of 1974, if the investment
Applicable decision is made by a plan fiduciary (as defined in Section
3(21) of the Act) which is either a bank, savings and loan
association, insurance company or registered investment
advisor, or if such employee benefit plan has total assets of
more than $5,000,000, or if such employee benefit plan is a
self-directed plan and the investment decisions are made
solely by persons that are accredited investors within the
meaning set forth in paragraphs (a)-(g) above.
3. Acknowledgment of Investment Risks. The Subscriber acknowledges
that an investment in the Securities involves certain significant risks. Each
prospective investor acknowledges that there is a substantial risk that the
Subscriber will lose all or a portion of his or her investment in the
Corporation and should be financially capable of bearing the risk of such
investment for an indefinite period of time.
4. Representations and Warranties of the Subscriber. The Subscriber
acknowledges, warrants and represents to the Corporation as follows:
(a) The Subscriber has received, has thoroughly read, is familiar
with and understands the contents of this Agreement describing, among
other things, the Corporation, the offering of the Securities and the
risks associated with the Securities. Furthermore, the Subscriber is
familiar with the operations and business of the Corporation, and the
Subscriber has received such information as it has deemed appropriate
with respect to the Corporation, and the Securities being offered by
the Corporation, all in a manner and to an extent that has allowed the
Subscriber to make an informed investment decision regarding the
Securities.
(b) The Subscriber is an Accredited Investor, as indicated above,
is sophisticated and well-informed and has such knowledge and
experience in financial and business matters in general and in
investments in particular, based on actual participation, as is
necessary to enable the Subscriber to evaluate the merits and risks of
a purchase of the Securities.
(c) The Subscriber has no need for liquidity in his or her
investment in the Securities and is able to bear the risk of that
investment for an indefinite period. The Subscriber understands that
there presently is no public market for the Securities and none is
anticipated to develop in the foreseeable future. The Subscriber's
present financial condition is such that the Subscriber is under no
present or contemplated future need to dispose of any portion of the
Securities subscribed for hereby to satisfy any existing or
contemplated undertaking, need or indebtedness. The Subscriber's
overall commitment to investments which are not readily marketable is
not disproportionate to his or her net worth and the investment in the
Corporation will not cause such overall commitment to become excessive.
The Subscriber's investment in the Securities does not exceed twenty
percent (20%) of the Subscriber's net worth (or, if applicable, the
joint net worth of the Subscriber and the Subscriber's spouse).
(d) The Securities has not been registered under the Securities
Act, or any state securities act, and is being sold on the basis of
exemptions from registration under the Securities Act and applicable
state securities acts. Reliance on such exemptions is predicated in
part on the accuracy of the Subscriber's
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representations and warranties set forth herein. The Subscriber
acknowledges that there can be no assurance that the Subscriber will be
able to liquidate his investment in the Corporation. The Subscriber
understands that the Corporation is under no obligation to register the
Securities under the Securities Act or to comply with any applicable
exemption under the Securities Act on behalf of the Subscriber with
respect to any resale of the Securities and that the Subscriber will
not be able to avail himself of the provisions of Rule 144 promulgated
under the Securities Act with respect to the resale of the Securities
until the Securities has been beneficially owned by the Subscriber for
the requisite period following the date of purchase as is provided
under Rule 144.
(e) If the Subscriber is not a citizen, resident or national of
the United States, to insure that the Securities purchased by such
Subscriber does not become subject to the United States securities
laws, the undersigned foreign citizen, resident or national hereby
agrees that its Securities, or any portion thereof, may not be sold
exchanged, assigned, or disposed of in the United States or in its
territories or possessions, prior to twenty-four (24) months after the
completion of the sale of the Securities, as determined by the Board of
Directors. Any attempted transfer of any Securities held by any foreign
citizen, resident or national in contravention of any of the provisions
shall be null and void and will not bind or be recognized by the
Corporation and shall have no effect. The foregoing restrictions are in
addition to and must be satisfied independently of those set forth in
paragraph (d) immediately above.
(f) In evaluating the merits and risks of an investment in the
Corporation, the Subscriber has relied on the advice of his or her own
personal legal and financial counsel.
(g) The Securities are being acquired solely for the Subscriber's
own account, for investment purposes only, and are not being purchased
with a view to or for the resale, distribution, subdivision or
fractionalization thereof; and the Subscriber has no present plans to
enter into any contract, undertaking, agreement or arrangement for such
resale, distribution, subdivision or fractionalization. In order to
induce the Corporation to issue and sell to the undersigned the
Securities subscribed for hereby, the parties hereto agree that the
Corporation will have no obligation to recognize the ownership,
beneficial or otherwise, of the Securities by anyone other than the
Subscriber. The Subscriber is not taking and will not take or cause to
be taken any action that would cause the Subscriber to be deemed an
"underwriter" within the meaning of Section 2(11) of the Securities
Act.
(h) There are substantial risk factors pertaining to an
investment in the Corporation. The Subscriber acknowledges that he or
she has read the information set forth above regarding certain of such
risks and is familiar with the nature and scope of all such risks,
including, without limitation, risks arising from the fact that the
Corporation is a recently formed entity with limited operating history
and financial resources; and the Subscriber is fully able to bear the
economic risks of such investment for an indefinite period, and can
afford a complete loss thereof.
(i) The Subscriber is subscribing for the Securities, as
indicated in Paragraph 1, without being furnished any offering
literature or prospectus other than this Agreement. The Subscriber also
has been given the opportunity to (i) ask questions of and receive
answers from the Corporation and its designated representatives
concerning the terms and conditions of the offering, the Corporation
and the business and financial condition of the Corporation and (ii)
obtain any additional information that the Corporation possesses or can
acquire without unreasonable effort or expense that is necessary to
assist the Subscriber in evaluating the advisability of an investment
in the Corporation and verifying the accuracy of information furnished
in the Corporation Agreement. The Subscriber is not relying on any oral
representation made by any other person as to the Corporation or its
operations and financial condition.
(j) The Subscriber understands that no federal, state or other
governmental authority has made any recommendation, findings or
determination relating to the merits of an investment in the
Corporation.
(k) The address of the Subscriber set forth on the signature page
hereof is a true and correct residence address, and the Subscriber is a
bona fide resident and domiciliary of such state or jurisdiction and
has no present intention of becoming a resident of any other state or
jurisdiction.
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The foregoing representations and warranties of the Subscriber are complete,
true and accurate as of the date hereof and shall survive delivery of the Funds
to the Corporation for all purposes. If in any respect any of such
representations and warranties shall not be true and accurate following delivery
of the funds but prior to the sale of the Securities, the Subscriber shall give
prompt written notice of such fact to the Corporation, specifying which
representations and warranties are not true and accurate and the reasons
therefor.
5. Assignment. The Subscriber shall not assign or transfer this
Agreement, and hereby further agrees and acknowledges that any transfer of the
Securities to be acquired by the Subscriber pursuant to the terms hereof shall
be made only in accordance with the transfer restrictions described in Paragraph
4 and any other restrictions under applicable federal and state securities laws.
6. Indemnification. The undersigned understands and acknowledges that
the sale of the Securities to the Subscriber will be based upon the
representations and warranties set forth herein and in other instruments and
documents relating to the Subscriber's subscription for the Securities, and the
Subscriber hereby agrees to indemnify and defend the Corporation and hold each
officer, director, employee and attorney of either harmless from and against any
and all loss, damage, liability or expense, including costs and reasonable
attorneys' fees, to which they may be put or which they may incur by reason of,
or in connection with, any misrepresentation made by the Subscriber herein or
elsewhere, any breach by the Subscriber of the representations or warranties set
forth herein or elsewhere, or the failure by the Subscriber to fulfill any of
his or her covenants or agreements set forth herein or elsewhere or arising out
of the sale or distribution of any of the Securities by the Subscriber in
violation of the Securities Act or any other applicable securities or "Blue Sky"
laws.
7. Confidentiality. The Subscriber understands and acknowledges that
this Agreement and the information provided to the Subscriber regarding the
Corporation are confidential, and hereby represents and warrants to the
Corporation that the Subscriber will not reproduce or distribute them, in whole
or in part, nor divulge any of their contents, to any person other than his or
her legal, tax, accounting or other advisors, if any, without the prior written
consent of the Corporation.
8. No Waiver. Notwithstanding any of the representations, warranties,
acknowledgments or agreements made herein by the Subscriber, the Subscriber does
not thereby or in any other manner waive any rights granted to him under
applicable federal or state securities laws.
9. Execution of this Agreement. If the Subscriber is a Corporation,
each of the partners shall sign below and, by signing below, each such partner
represents and warrants that (a) each one of the representations, warranties,
agreements or understandings set forth herein applies to that Corporation; and
(b) the person who has executed this agreement on behalf of the Corporation
identified as the Subscriber is authorized so to sign. If the Subscriber is a
trust, a trustee (or co-trustee) of the trust should sign on behalf of the trust
and such trustee (or co-trustee) must be authorized by the applicable trust
agreement to make this investment and to enter into this Agreement. If the
Subscriber is a corporation, the corporation shall sign and the individual so
signing on behalf of the corporation must be authorized to sign on its behalf.
If the Subscriber is a limited liability company, the limited liability company
shall sign and the individual so signing on behalf of the limited liability
company must be authorized to sign on its behalf. Upon a request of the
Corporation, such corporation will furnish to the Corporation the appropriate
language of its charter or by-laws, or both, authorizing the corporation to make
such investment and the appropriate minutes or resolutions authorizing specific
purchase of the Securities and authorizing or directing the execution and
delivery of documentation in connection therewith.
10. Notices. Any notices or other communications required or permitted
hereby shall be made in writing and shall be deemed sufficiently given if sent
by registered or certified mail, postage prepaid, return receipt requested, (i)
to the Subscriber, at the residence address set forth on the signature page
hereof, and (ii) to the General Partner on behalf of the Corporation, at 000 X.
Xxxxx Xxxxxx, Xxxxx X, Xxxxxxxxxxx, Xxxxxxxx, Attn: President.
11. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and to the successors or
assigns of the Corporation and to the personal and legal representatives, heirs,
guardians and successors of the Subscriber.
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12. Applicable Law. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY
BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL
OF THE TERMS AND PROVISIONS HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUSIVE OF ITS CONFLICTS OF
LAWS RULES, APPLICABLE TO AGREEMENTS MADE AND TO BE WHOLLY PERFORMED THEREIN.
13. Acceptance by the Corporation. This Agreement may be accepted or
rejected by the Corporation, in its sole and absolute discretion, in whole or in
part. Acceptance by the Corporation shall be effected by counterpart execution
of this Agreement by an authorized signatory thereof.
14. Subscription. The Securities to be issued by the Corporation and
purchased by the Subscriber, and the aggregate purchase price therefore, are
described below:
Total Subscription Amount: $50,000.00
Number and Description
of Securities subscribed for: 20,000 shares of Common
Stock, $.001 par
value per share
Five year Warrants to
purchase 20,000 shares of
Common Stock, $.001 par
value, for an exercise
price equal to $3.00 per
share
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SUBSCRIPTION AGREEMENT SIGNATURE PAGE FOR
INDIVIDUALS AND JOINT TENANTS
EXECUTED this 6th day of May, 2002 at Stratham, New Hampshire
Subscriber's Address: /s/ Xxxxxx Xxxxxx
------------------------------------
8A Camden Park (Signature of First Subscriber)
Xxxxxxxxx 000000
Xxxxxx Xxxxxx
------------------------------------
(Printed Name of First Subscriber)
Social Security No.: [redacted]
NOTARIZATION
STATE OF NEW HAMPSHIRE
COUNTY OF RABINGHAM
The foregoing instrument was subscribed and sworn to before me this
6th day of May, 2002, by the undersigned. Witness my hand and official seal.
/s/ Xxxxxxx X. Xxxx
------------------------------------
Notary Public
[SEAL] My Term Expires: December 3, 2002
Approved and accepted:
DECORIZE, INC.
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: Chief Executive Officer and President
