SUBSCRIPTION AGREEMENT
THIS
SUBSCRIPTION AGREEMENT (“Subscription Agreement”) is made as of this __ day of
__________________, 2007, by and among Ironclad Performance Wear Corporation,
a
Nevada corporation (the “Company”) and the undersigned subscriber (the
“Subscriber”).
A. The
Company intends to obtain subscriptions, from one or more purchasers, including
Subscriber, and in one or more closings as determined by the Company on the
terms and conditions set forth herein, for the purchase and sale of the
Company’s common stock, par value $0.001 per share (the “Common Stock”), at a
purchase price per share of $0.40 (collectively, the “Offering”);
and
B. The
Company and Subscriber are executing and delivering this Subscription Agreement
in reliance upon the exemption from securities registration afforded by Section
4(2) of the Securities Act of 1933, as amended (the “Act”), and Rule 506 of
Regulation D (“Regulation D”) as promulgated by the United States Securities and
Exchange Commission under the Act;
C. The
Offering began on September 5, 2007 and will terminate (if subscription for
all
of the Common Stock offered has not earlier occurred) at 5:00 PM Pacific
Daylight Time on September 21, 2007, unless extended by the Company in its
sole
discretion.
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 (the “Shares”) at a
price of $0.40 per share (the “Purchase Price”). The Company agrees to sell such
Shares to the Subscriber at a price per share equal to the Purchase
Price.
1.2 On
or
prior to the closing of the purchase of the Shares in the Offering (the
“Closing”), the Subscriber shall deliver to the Company the following: (i) this
Agreement, duly executed by the Subscriber, (ii) the Investor
Questionnaire, the
form
of which is attached hereto as Exhibit
A
(the
“Investor Questionnaire”), and
(iii)
the aggregate Purchase Price in United States Dollars and in immediately
available funds, by wire transfer as follows:
Xxxxx
Fargo Bank
Bank
Routing #: 000000000
Account
#
4121370654
1.3 On
or
prior to the Closing, the Company shall deliver to the Subscriber this
Agreement, duly executed by the Company.
1.4 The
Closing shall occur on the date (the “Closing Date”) that all of the conditions
set forth in Sections
1.2
and
1.3
have
been satisfied or duly waived. The Closing of the purchase and sale of the
Shares shall take place at the offices of Xxxxxx Xxxxxxxx & Markiles, LLP,
00000 Xxxxxxx Xxxxxxxxx, 00xx
Xxxxx,
Xxxxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date or at such other locations
or remotely by facsimile transmission or other electronic means as the parties
may mutually agree.
1.5 The
certificates for the Shares 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 the Subscriber pursuant to this Subscription Agreement to the
residential or business address indicated in the Investor
Questionnaire.
1.6 The
Company may, in its sole discretion, terminate or withdraw the Offering in
its
entirety at any time prior to a closing in relation thereto. The Company shall
not be required to allocate among investors on a pro rata basis in the event
of
an over-subscription of the total number of Shares offered in the
Offering. Subscriber
understands that there is no minimum amount of Shares which must be sold prior
to release of funds to the Company hereunder, and further acknowledges and
agrees that the subscription hereunder is not subject to, or otherwise
conditioned upon, the subscription by any other purchaser of the Common Stock
of
the Company.
1.7 (a) Except
with respect to Excluded Issuances, if at any time during the Full-Ratchet
Period, the Company shall issue or sell or agree to issue or sell any shares
of
Common Stock or Common Stock Equivalents to any Person for a price per share
less than the Purchase Price (the “Lower Per Share Purchase Price”), then and in
each such case (a “Trigger Issuance”), the Company shall issue, in connection
with such Trigger Issuance, a number of additional shares of Common Stock to
Subscriber equal to the difference of (A) the quotient of Subscriber’s aggregate
Purchase Price divided by the Lower Per Share Purchase Price in such Trigger
Issuance, minus
(B) the
sum of the number of shares of Common Stock issued to Subscriber on the Closing
Date, plus the number of shares of Common Stock issued to Subscriber in
connection with any prior Trigger Issuance. Promptly after each Trigger Issuance
(but in no event more than five (5) business days thereafter), the Company
shall
issue irrevocable instructions authorizing its transfer agent to issue the
Common Stock required by this Section
1.7.
The
price per share at which the Company issues or sells or agrees to issue or
sell
shares of Common Stock or Common Stock Equivalents shall be (i) in the case
of
shares of Common Stock, the quotient of the aggregate cash consideration
received therefor plus the fair market value of the aggregate non-cash
consideration received therefore, if any (as determined in good faith by the
Board of Directors of the Company), in each case, before deduction therefrom
of
any expenses incurred or any underwriting commissions or concessions paid or
allowed by the Company in connection therewith, divided by the number of shares
of Common Stock issued or sold, or agreed to be issued or sold; and (ii) in
the
case of Common Stock Equivalents, the applicable exercise or conversion price
set forth therein or in the terms and conditions governing the rights therein.
For the avoidance of doubt, the issuance of Common Stock Equivalents (and not
the actual conversion or exercise of such Common Stock Equivalent into shares
of
Common Stock) is the event that gives rise to the issuance of shares under
this
Section
1.7;
provided, however, that if, during the Full Ratchet Period, the exercise,
conversion or exchange price of such Common Stock Equivalent is decreased by
the
Company to a price below the Purchase Price in connection with an event that
does not constitute a Trigger Issuance hereunder, such decrease shall be deemed
to constitute a Trigger Issuance.
2
(b) For
purposes of this Section
1.7,
(i)
“Common Stock Equivalents” means any securities of the Company issued after the
Closing Date which would entitle the holder thereof to acquire at any time
Common Stock, including, without limitation, any debt, preferred stock, rights,
options, warrants or other instrument that is at any time convertible into
or
exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock or other securities that entitle the holder to receive, directly or
indirectly, Common Stock, (ii) “Excluded Issuances” means each of the following:
(I) the issuance of securities upon the exercise or conversion of any
Common Stock or Common Stock Equivalents issued by the Company prior to the
date
hereof and disclosed in reports
filed by the Company pursuant to the Securities Exchange Act of 1934, as amended
(all reports so filed by the Company are referred to herein as the “SEC
Reports”),
(II) the grant of options, warrants or other Common Stock Equivalents under
any duly authorized Company stock option, restricted stock plan or stock
purchase plan whether now existing or hereafter approved by the Company and
its
stockholders in the future, and the issuance of Common Stock in respect thereof,
and (III) the issuance of Common Stock pursuant to this Agreement, (iii) “Full
Ratchet Period” means the period of time beginning on the Final Closing Date (as
defined below) and ending on the date upon which the first Registration
Statement filed pursuant to the provisions of Section
4
below is
first declared effective by the SEC, and (iv) “Person” means an individual,
corporation, partnership, limited liability company, trust, business trust,
association, joint stock company, joint venture, sole proprietorship,
unincorporated organization, governmental authority or any other form of entity
not specifically listed herein.
2. Representations
and Covenants of Subscriber
2.1 The
Subscriber recognizes that the purchase of the Shares involves a high degree
of
risk in that (i) the Company will need additional capital but has no assurance
of 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 Shares; (iii) an
investor may not be able to liquidate its investment; (iv) transferability
of
the Shares is extremely limited; (v) an investor could sustain the loss of
its
entire investment; and (vi) the Company is and will be subject to numerous
other
risks and uncertainties, including without limitation, significant and material
risks relating to the business and operations of the Company, and the industries
and markets in which the Company will compete, all as more fully set forth
herein and in the SEC Reports (as defined below).
2.2 The
Subscriber represents that it is an “accredited investor” as such term is
defined in Rule 501 of Regulation D promulgated under the Act, as indicated
by
its responses to the Investor Questionnaire, and that it is able to bear the
economic risk of an investment in the Shares. The Subscriber must complete
the
Investor Questionnaire to enable the Company to access the Subscriber’s
eligibility for the Offering.
3
2.3 The
Subscriber acknowledges that it has prior investment experience, including
without limitation, investment in non-listed and non-registered securities,
or
it has employed the services of an investment advisor, attorney or accountant
to
read all of the documents furnished or made available by the Company both to
it
and to all other prospective investors in the Common Stock and to evaluate
the
merits and risks of such an investment on its behalf, and that it recognizes
the
highly speculative nature of this investment.
2.4 The
Subscriber acknowledges receipt and careful review of this Subscription
Agreement and hereby represents that it has been furnished or given access
by
the Company during the course of this Offering with or to all information
regarding the Company and its respective financial condition and results of
operation which it had requested or desired to know; that all documents which
could be reasonably provided have been made available for its inspection and
review; that it has been afforded the opportunity to ask questions of and
receive answers from duly authorized representatives of the Company concerning
the terms and conditions of the Offering, and any additional information which
it had requested. The Subscriber further represents and acknowledges that the
Subscriber has not seen or received any advertisement or general solicitation
with respect to the sale of any of the securities of the Company, including,
without limitation, the Shares.
2.5 The
Subscriber acknowledges that this offering of Common Stock may involve tax
consequences, and that the contents hereof do not contain tax advice or
information. The Subscriber acknowledges that it must retain its own
professional advisors to evaluate the tax and other consequences of an
investment in the Shares.
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 Shares are being purchased
for its own account and not for distribution or resale to others; provided
however, that the Subscriber does not agree to hold any such securities for
a
minimum or specified term and reserves the right to sell, transfer or otherwise
dispose of the Shares at any time in accordance with this Agreement or with
federal and state securities laws. The Subscriber agrees that it will not sell
or otherwise transfer any of the securities comprising the Shares unless they
are 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 Rule 144 (the “Rule”) 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 or comply with an exemption therefrom. Except as set forth in the
immediately following sentence, the Subscriber understands that the Company
makes no 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. During any period in which
the
Shares are elgible for resale in accordance with the provisions of Rule 144,
other than Rule 144(k), and so long as the Company is subject to the reporting
obligations under the Exchange Act, the Company covenants to file (or obtain
extensions in respect thereof and file within the applicable grace period)
all
reports required to be filed by the Company after the date hereof pursuant
to
the Exchange Act. The
Subscriber agrees to hold the Company and its 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 federal or state securities
laws.
4
2.8 The
Subscriber consents to the placement of one or more legends on any certificate
or other document evidencing its Shares stating that they have not been
registered under the Act and are subject to the terms of this Subscription
Agreement, and setting forth or referring to the restrictions on the
transferability and sale thereof. The Company agrees to remove any such legend
from any Share that is sold pursuant to an effective registration statement
or
Rule 144.
2.9 The
Subscriber understands that the Company will review this Subscription Agreement
and the Investor Questionnaire and, if the Subscriber is a natural person,
the
Company is hereby given authority by the undersigned to call its bank or place
of employment. The Subscriber further authorizes the Company to review the
financial standing of the Subscriber.
2.10 The
Subscriber hereby represents that the address of Subscriber furnished by it
at
the end of this Subscription Agreement and in the Investor Questionnaire is
the
undersigned's principal residence if it is an individual or its principal
business address if it is a corporation or other entity.
2.11 The
Subscriber acknowledges that if the Subscriber is a Registered Representative
of
a National Association of Securities Dealers, Inc. (“NASD”) member firm, it 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 Shares in the ordinary course of business and, at the time of
purchase of the Shares, has no agreements or understandings, directly or
indirectly, with any person to distribute the Shares or any portion
thereof.
2.12 The
Subscriber hereby represents that, except as set forth herein and in the SEC
reports, no representations or warranties have been made to the Subscriber
by
either the Company or its agents, employees or affiliates and in entering into
this transaction, the Subscriber is not relying on any information, other than
that contained herein or in the SEC Reports.
5
2.13 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 Shares; 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, subject to bankruptcy, insolvency
and
similar laws protecting creditors rights, and to equitable principles which
may,
among other things, constrain the enforcement of indemnity
provisions.
2.14 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 Shares
or
any use of this Subscription Agreement, including (i) the legal requirements
within its jurisdiction for the purchase of the Shares, (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 Shares. Subscriber's subscription and
payment for, and its continued beneficial ownership of the Shares, will not
violate any applicable securities or other laws of the Subscriber's
jurisdiction, except to the extent such laws were violated by actions taken
by
the Company.
2.15 The
Subscriber hereby covenants and agrees that neither it nor any of its affiliates
has or will 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 Subscriber hereby acknowledges
and
understands that the SEC has taken the position that covering such an open
position with shares being registered in the Registration Statement would
constitute a violation of Section 5 of the Act.
2.16 The
Subscriber understands and acknowledges that (i) the Shares are 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
Except
as
set forth in the SEC Reports, the Company represents and warrants to the
Subscriber that:
3.1 Organization
and Authority.
The
Company (i) is a corporation 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 its obligations under this
Subscription Agreement, and to consummate the transactions contemplated
hereby.
6
3.2 Qualifications.
The
Company 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, taken as a whole.
3.3 Capitalization
of the Company.
Of
the
authorized capital stock of the Company, on September 5, 2007 (and before the
closing of this Offering), there were outstanding 30,126,560 shares of Common
Stock, options to purchase an aggregate of 4,498,046 shares of Common Stock,
and
warrants to purchase an aggregate of 10,454,519 shares of Common Stock.
Except
as
a result of the purchase and sale of the Shares or as disclosed in the SEC
Reports, there are no additional 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 is or may become bound to issue additional
shares of Common Stock, or securities or rights convertible or exchangeable
into
shares of Common Stock. Except as described herein, the issuance and sale of
the
Shares will not obligate the Company to issue shares of Common Stock or other
securities to any person (other than the Subscriber) 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 shares of the Company’s
capital stock outstanding immediately prior to the closing are or will be duly
authorized and validly issued and are or will be 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), except as described in the SEC Reports. 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, the Common Stock will be duly
and validly issued, fully paid and non-assessable. The Common Stock is eligible
for quotation on the OTC Bulletin Board, the Company and the Common Stock meets
the criteria for continued quotation and trading on the OTC Bulletin Board,
the
Company has not received any notice from FINRA or any other self-regulatory
organization or governmental agency that the Company may not be in compliance
with such criteria, and no suspension of trading in the Common Stock is in
effect.
3.4 Corporate
Authorization.
This
Subscription Agreement has been duly and validly authorized by the Company.
This
Subscription Agreement, assuming due execution and delivery by the Subscriber,
when executed and delivered by the Company, will be, a valid and binding
obligation of the Company, enforceable in accordance with its respective terms,
except as the enforceability hereof 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.
7
3.5 Non-Contravention.
The
execution and delivery of this Subscription Agreement by the Company, the
issuance of the Shares as contemplated hereunder, and the completion by the
Company of the other transactions contemplated by the Offering 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, (ii) conflict with or result
in a
breach by the Company 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, pursuant to any agreements, instruments
or
documents filed as exhibits to the SEC Reports or any indenture, mortgage,
deed
of trust or other agreement or instrument to which the Company is a party or
by
which the Company or any of its 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, taken as a whole, or the validity or enforceability
of, or the ability of the Company to perform its obligations hereunder, (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 any of its properties or assets that would
have
a material adverse effect on the business, properties, operations, condition
(financial or other), results of operations or prospects of the Company, taken
as a whole, or the validity or enforceability of, or the ability of the Company
to perform its obligations hereunder, or (iv) have any material adverse effect
on any permit, certification, registration, approval, consent, license or
franchise necessary for the Company to own or lease and operate any of its
properties and to conduct any of its business or the ability of the Company
to
make use thereof.
3.6 Information
Provided.
The
Company hereby represents and warrants to the Subscriber that the information
set forth in the SEC Reports and any other document provided by the Company
(or
the Company’s authorized representatives) 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.
3.7
Absence of Certain Proceedings.
There
exists no action, suit, proceeding, inquiry or investigation before or by any
court, public board or body, or governmental agency pending or threatened
against or affecting the Company, 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 the transactions contemplated
hereunder or which could adversely affect the validity or enforceability of,
or
the authority or ability of the Company to perform its obligations hereunder;
and to the Company’s knowledge there is not pending or contemplated any, and
there has been no, investigation by the SEC involving the Company or any of
its
current or former directors or officers.
8
3.8 Compliance
with Law.
The
Company is not in violation of nor 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, taken as a whole; and to the knowledge
of the Company there is no pending investigation that would reasonably be
expected to lead to such a claim.
4. Registration
Rights
4.1 Registration
Requirement.
Subject
to the terms and limitations hereof, 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 sold in the
Offering, including, without limitation, the Shares (collectively, the
“Registrable Securities”), and shall use its commercially reasonable efforts to
maintain the Registration Statement effective for a period of twenty-four (24)
months following the Closing Date, at the Company’s expense (the “Effectiveness
Period”). The Company shall file such Registration Statement no later than
forty-five (45) days after the last closing date among all subscribers in the
Offering (the “Final Closing Date”), and shall use commercially reasonable
efforts to cause such Registration Statement to become effective within one
hundred fifty (150) days after the Final Closing Date, provided, however, that
any failure by the Company to file or cause the effectiveness of the
Registration Statement within the time periods set forth herein shall not be
deemed a breach of this Subscription Agreement or of the Company’s obligations
hereunder.
4.2 Limitation
to Registration Requirement.
Notwithstanding the foregoing, the Company shall not be obligated to effect
any
registration of the Registrable Securities or take any other action pursuant
to
this Section
4:
(i) 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, or (ii) during
any
period in which the Company suspends the rights of a subscriber after giving
the
Subscriber written notification of a Potential Material Event (defined below)
pursuant to Section
4.6
hereof,
or (iii) if the SEC refuses to declare a Registration Statement filed pursuant
to this Subscription Agreement, or any other subscription agreement, effective
as a valid secondary offering under Rule 415 due to the number of Registrable
Securities included in such Registration Statement relative to the outstanding
number of shares of Common Stock. If the SEC refuses to declare a Registration
Statement filed pursuant to this Subscription Agreement, or any other
subscription agreement, effective as a valid secondary offering under Rule
415
due to the number of Registrable Securities included in such Registration
Statement relative to the outstanding number of shares of Common Stock, then
the
Company shall be permitted to reduce the number of Registrable Securities
included in such Registration Statement (which reduction may include, without
limitation, all or any portion of the Shares) to cause the Registration
Statement as a whole to register an amount of shares for resale that does not
exceed an amount that the SEC allows for the offering thereunder to qualify
as a
valid secondary offering under Rule 415, and shall register such excess
Registrable Securities as soon as permitted by rules or interpretations issued
by the SEC.
9
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 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.
4.4 Indemnification.
(a) To
the
extent permitted by law, the Company will indemnify Subscriber, and each of
its
officers, directors, agents, employees and partners, with respect to each
registration, qualification or compliance effected pursuant to this Agreement,
against all claims, losses, damages and liabilities (or actions, proceedings
or
settlements in respect thereof) arising out of or based on (i) 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, (ii) 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,
(iii)
any breach by the Company of any agreement, representation or warranty made
by
it in this Agreement, or (iv) 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 subject to the provisions of Section
4.4(c)
below,
will reimburse Subscriber, and each of its officers, directors, agents,
employees and partners, 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 (or on behalf of) Subscriber, or if
the
person asserting any such loss, claim, damage or liability (or action or
proceeding in respect thereof did not receive a copy of an amended preliminary
prospectus or the final prospectus (or the final prospectus as amended and
supplemented) at or before the written confirmation of the sale of such
Registrable Securities to such person because of the failure of the Subscriber
to so provide such amended preliminary or final prospectus (or the final
prospectus as amended and supplemented) but only if such amended prospectus
is
delivered to the Subscriber prior to such confirmation; 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 the Subscriber, or any partner, officer, director,
employee, or agent of Subscriber.
10
(b) To
the
extent permitted by law, Subscriber, to the extent its Registrable Securities
are included in any registration, qualification or compliance effected pursuant
to this Subscription Agreement will indemnify the Company, and its directors,
officers, partners, agents, and employees, and each other Subscriber and each
of
their officers, directors, partners, agents and employees, 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
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company and such Subscribers,
directors, officers, partners, agents and employees 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 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), and the Indemnified Party may participate in such defense at such
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 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 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.
11
(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 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; provided,
however,
that
the obligations of Subscriber hereunder shall be limited to an amount equal
to
the net proceeds to Subscriber from Registrable Securities sold under such
registration statement, prospectus, offering circular or other document as
contemplated herein. 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.
Upon a
sale or other transfer or disposition of Registrable Securities in accordance
with the terms of this Agreement, the Subscriber may assign its rights under
this Agreement to the transferee of such Registrable Securities, provided that
the Company is given written notice of such transfer, stating the name and
address of said transferee and identifying the Registrable Securities with
respect to which such registration rights are being transferred; provided
further that the transferee of such Registrable Securities 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;
12
(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;
(f) Use
its
commercially reasonable 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
commercially reasonable 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 hereof, 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 90 days
during any 12 month period.
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 requested by the Company within the time period reasonably specified
by the Company or is required to do so by law or the SEC.
13
4.8 Compliance.
Subscriber covenants and agrees that Subscriber will comply with the prospectus
delivery requirements of the Act as applicable to Subscriber in connection
with
sales of Registrable Securities pursuant to the registration statement required
hereunder.
4.9 Piggy-Back
Registrations.
If at
any time during the Effectiveness Period there is not an effective registration
statement covering all of the Registrable Securities and the Company shall
determine to prepare and file with the SEC a registration statement relating
to
an offering for its own account or the account of others under the Act of any
of
its Common Stock, other than an offering of securities issued pursuant to a
Strategic Issuance (as defined below) and other than a Form S-4 or Form S-8
registration statement (each as promulgated under the Act or their then
equivalents relating to equity securities to be issued solely in connection
with
any business combination transaction, acquisition of any entity or business
or
equity securities issuable in connection with stock option or other employee
benefit plans), then the Company shall send to the Subscriber (together with
any
other holders of its Common Stock possessing “piggyback registration rights”
comparable to those granted to the Subscriber hereunder (“Rightsholders”))
written notice of such determination and, if within fifteen (15) days after
receipt of such notice, the Subscriber shall so request in writing, the Company
shall include in such registration statement all or any part of such Registrable
Securities such Subscriber requests to be registered; provided that the Company
shall not be required to register any Registrable Securities pursuant to this
Section that are eligible for resale pursuant to Rule 144(k) promulgated under
the Act; and provided further that the Company may, without the consent of
the
Subscriber, withdraw such registration statement before its becoming effective
if the Company or other stockholders have elected to abandon the proposal to
register the securities proposed to be registered thereunder. If the
registration statement is being filed for an underwritten public offering,
the
Subscriber must timely execute and deliver the usual and customary agreement
among the Company, such Subscriber and the underwriters relating to the
registration. If the registration statement is being filed for an underwritten
offer and sale by the Company of securities for its own account and the managing
underwriters advise the Company in writing that in their opinion the offering
contemplated by the registration statement cannot be successfully completed
if
the Company were to also register the Registrable Securities of the Subscriber
requested to be included in such registration statement, then the Company will
include in the registration: (i) first, any securities the Company proposes
to
sell, (ii) second, any securities of any person whose securities are being
registered as a result of the exercise of a demand registration right, and
(iii)
third, that portion of the aggregate number of shares being requested for
inclusion in the registration statement by (X) the Subscriber and (Y) all other
Rightsholders, which in the opinion of such managing underwriters can
successfully be sold, such number of shares to be taken pro
rata
from the
Rightsholders on the basis of the total number of shares being requested for
inclusion in the registration statement by each Rightsholder. “Strategic
Issuance” shall mean an issuance of securities: (i) in connection with a
“corporate partnering” transaction or a “strategic alliance” (as determined by
the Board of Directors of the Company in good faith); (ii) in connection with
any financing transaction in respect of which the Company is a borrower; or
(iii) to a vendor, lessor, lender, or customer of the Company, or a research,
manufacturing or other commercial collaborator of the Company, in a transaction
approved by the Board of Directors, provided in any case, that such issuance
is
not being made primarily for the purpose of avoiding compliance with this
Subscription Agreement.
14
5. Miscellaneous
5.1 Any
notice or other communication given hereunder shall be deemed sufficient if
in
writing and sent by verifiable facsimile, overnight courier or registered or
certified mail, return receipt requested, addressed to the Company, at Ironclad
Performance Wear Corporation, 0000 Xxxx Xxxxx, Xxxxx 000, Xx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Xx Xxxxxx, President, with a copy to (which shall not
constitute notice) Xxxxxx Xxxxxxxx & Markiles, LLP, 00000 Xxxxxxx Xxxxxxxxx,
00xx
Xxxxx,
Xxxxxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxxxxxx, Esq., and to the
Subscriber at its address indicated on the signature page of this Subscription
Agreement. Notices shall be deemed to have been given when received.
5.2 This
Subscription Agreement may be amended through a written instrument signed by
the
Subscriber and the Company. The Company shall not offer any additional
inducement or consideration to any subscriber unless such inducement or
consideration is offered to all subscribers.
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 California.
5.5 This
Subscription Agreement may be executed in counterparts.
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.
15
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. The Company will file a Form 8-K
on
the third business day following the date of this Agreement describing the
terms
of this Agreement in reasonable detail but subject to any disclosure limitations
imposed on the Company by the relevant rules promulgated under the Act.
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 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
Shares, or acquiring, disposing of or voting any of the 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]
16
IN
WITNESS WHEREOF, the parties have executed this Subscription Agreement as of
the
day and year first written above.
Subscriber:
By:
Title:
Address of Subscriber
Social
Security or Taxpayer
Identification
Number of Subscriber
Number of Shares Subscribed For
Aggregate
Purchase Price
Subscription
Agreed to and Accepted :
By:
Name:
Title:
17
EXHIBIT
A
INVESTMENT
QUESTIONNAIRE
CONFIDENTIAL
INVESTOR
QUESTIONNAIRE
0000
Xxxx
Xxxxx
Xxxxx
000
Xx
Xxxxxxx, Xxxxxxxxxx 00000
The
information contained herein is being furnished to you in order for you to
determine whether the undersigned’s subscription to purchase shares of Common
Stock, par value $0.001
per
share (the “Common
Stock”),
of
Ironclad Performance Wear Corporation, a Nevada corporation (the “Company”),
may
be accepted by you pursuant to Section 4(2) of the Securities Act of 1933,
as
amended (the “Securities Act”), and Regulation D promulgated thereunder
(“Regulation
D”).
I
understand that (i) the Company will rely upon the information contained
herein
for purposes of determining the availability of exemptions from the registration
requirements of the Securities Act and (ii) the issuance of the Common Stock
will not be registered under the Securities Act in reliance upon such
exemptions.
All
information furnished is for the sole use of the Company and will be held
in
confidence by you, except that this Questionnaire may be furnished to such
parties as the Company’s counsel deems necessary or desirable to establish
compliance with federal or state securities laws.
In
accordance with the foregoing, the undersigned makes the following
representations and warranties:
1. (This
item is presented in alternative form. Please initial, in the space provided,
the alternative you select.)
| ____ |
ALTERNATIVE
ONE:
The undersigned has such knowledge and experience in financial
and
business matters so as to be capable of evaluating the relative
merits and
risks of an investment in the Common Stock; the undersigned is
not
utilizing an Investor Representative (as defined below) in connection
with
evaluating such merits and risks. The undersigned offers as evidence
of
knowledge and experience in these matters the information requested
below
on this Investor Questionnaire.
|
|
| ____ |
ALTERNATIVE TWO*:
The undersigned will use a representative(s) (“Investor
Representative”)
acceptable to the Company in connection with evaluating a potential
investment in the Common Stock. The undersigned acknowledges that
the
following person(s) will be acting as Investor Representative(s)
in
connection with evaluating the merits and risks of an investment
in the
Common Stock.
|
List
name(s) of Investor Representative(s):
________________________________________
________________________________________
The
above-named Investor Representative(s) has (have) furnished to the undersigned
a
completed Investor Representative Questionnaire, a copy of which is available
from the Company upon request. The undersigned and the above-named Investor
Representative(s) together have such knowledge and experience in financial
and
business matters that they are capable of evaluating the merits and risks
of an
investment in the Common Stock.
(*IF
YOU
HAVE INITIALED ALTERNATIVE TWO, THIS INVESTOR QUESTIONNAIRE MUST BE ACCOMPANIED
BY A COMPLETED AND SIGNED INVESTOR REPRESENTATIVE QUESTIONNAIRE.)
|
2.
|
Except
as indicated below, any purchase of the Common Stock will be solely
for
the account of the undersigned, and not for the account of any
other
person or with a view to any resale, division or distribution thereof.
|
NO
EXCEPTIONS (Cross
out
if exceptions and give details. Attached additional pages if
necessary)
PART
ONE:
INFORMATION REQUIRED OF EACH PROSPECTIVE INVESTOR:
|
1.
|
Name:
|
|||||
|
(Investor’s
exact name, as it should appear in the
records
of the Company.)
|
||||||
|
2.
|
Address:
|
|||||
|
Telephone
number:
|
Fax:
|
|||||
|
Social
Security or
Taxpayer
ID number:
|
||||||
| 3. |
Describe
any preexisting business or personal relationship between yourself
and any
director or officer of the Company:
|
2
PART
TWO: TO BE COMPLETED ONLY BY PROSPECTIVE INVESTORS WHO ARE NATURAL
PERSONS
| 4. |
Check
one of the following representations (a) or (b),
IF APPLICABLE:
|
| ____ |
(a)
|
My
individual net worth, or joint net worth with my spouse, exceeds
$1,000,000
|
| ____ |
(b)
|
My
individual income (without my spouse) was in excess of $200,000
in each of
the two most recent years or joint income with my spouse was in
excess of
$300,000 in each of those years, and I reasonably expect an income
reaching the same income level in the current year. For purposes
of this
Investor Questionnaire, individual income means adjusted gross
income, as
reported for federal income tax purposes, less any income attributable
to
a spouse or to property owned by a spouse, increased by the following
amounts (but not including any amounts attributable to a spouse
or to
property owned by a spouse): (i) the amount of any tax exempt interest
income received, (ii) the amount of losses claimed as a limited
partner in
a limited partnership, (iii) any deduction claimed for depletion,
(iv)
deductions for alimony paid, (v) amounts contributed to an XXX
or Xxxxx
retirement plan, and (vi) any amount by which income from long-term
capital gains has been reduced in arriving at adjusted gross income
pursuant to the provisions of Section 1202 of the Internal Revenue
Code.
|
| 5. |
Please
describe your educational
background:
|
| 6. |
Professional
licenses or registrations, including bar admissions, accounting
certification, real estate brokerage licenses, and SEC or state
broker-dealer registrations, if
any:
|
| 7. |
Prior
employment, positions or occupations during the past five years
(and the
inclusive dates of each) are as
follows:
|
|
Employment
or Occupation:
|
|
|
Nature
of Responsibility:
|
|
|
From
- To:
|
| 8. |
The
undersigned has previously purchased securities, which were sold
in
reliance upon the private offering exemption from registration
under the
Securities Act:
|
|
Yes
_____
|
No _____ |
|
| 9. |
Please
specify your investment objectives:
|
|
Income
|
Other,
please
state:
|
|||
|
Appreciation
|
10. Describe
what type of prior investments you have participated in and the amounts
involved:
|
Nature
of Investment:
|
|
|
Amount
Invested:
|
|
3
PART
THREE: TO BE COMPLETED BY ALL PROSPECTIVE INVESTORS WHO ARE NOT NATURAL
PERSONS.
|
12. Type
of Organization (partnership, corporation, etc.):
|
|
|
13. Date
and place of organization:
|
|
|
14. The
undersigned is:
|
| (a) | (___) |
a
bank as defined in Section 3(a)(2) of the Securities Act, or any
savings
and loan association or other institution as defined in Section
3(a)(5)(A)
of the Securities Act acting in either an individual or fiduciary
capacity;
|
| (___) |
a
broker or dealer registered pursuant to Section 15 of the Securities
and
Exchange Act of 1934;
|
| (___) | 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; |
| (___) | an investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act; or |
| (___) | an insurance company as defined in Section 2(13) of the Securities Act of 1933; |
| (b) | (___) | a private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940; |
| (c) | (___) | a corporation, partnership, limited liability company, Massachusetts or similar business trust, or an organization described in Section 501(c)(3) of the Internal Revenue Code, not formed for the specific purpose of acquiring the securities offered with total assets in excess of $5,000,000; |
| (d) | (___) | any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in the rules and regulations of the Securities Act; |
| (e) | (___) | an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is a bank, an insurance company, a savings and loan association, or a registered investment advisor; |
| (___) | an employee benefit plan with total assets in excess of $5,000,000; or |
| (___) | an employee benefit plan that is a self-directed plan (such as a self-directed individual retirement account (XXX), Xxxxx or SEP plan) with investment decisions made solely by persons that are accredited investors; or |
| (f) | (___) | an entity in which all of the equity owners are Accredited Investors as defined in Rule 501(a) of Regulation D. Note: each equity owner must submit an individual Investor Questionnaire. |
|
(1)
|
List
all equity owners of
the entity:
|
|
(2)
|
Type
of entity:
|
| 15. |
Attach
a copy of the entity’s: Articles of Incorporation and Directors’
Resolution authorizing the investment, or Partnership or Trust
Agreement,
if any.
|
4
REPRESENTATIONS
AND WARRANTIES OF EACH PROSPECTIVE INVESTOR:
The
undersigned understands that the Company will be relying on the accuracy
and
completeness of the responses to the foregoing questions and represents and
warrants to the Company as follows:
| (i) |
The
answers to the above questions are complete and correct and may
be relied
upon by the Company in determining whether the offering in which
the
undersigned proposes to participate is exempt from registration
under the
Securities Act and the rules promulgated thereunder;
|
| (ii) |
The
undersigned will notify the Company immediately of any material
change in
any statement made herein occurring prior to the completion of
the
offering; and
|
|
(iii)
|
The
undersigned has adequate means of providing for the undersigned’s current
needs and personal contingencies, has no need for liquidity in
its
investment in the Common Stock, and is able to bear the economic
risk of
an investment in the Common Stock of the size contemplated. In
making this
statement, the undersigned at the present time could afford a complete
loss of such investment.
|
IN
WITNESS WHEREOF, I have executed this Investor Questionnaire this ___ day
of
__________, 2003.
|
INDIVIDUALS:
|
ENTITIES: | |||
|
Print
Name
|
Print
Name of Subscriber
|
|||
|
Signature
|
Authorized
Signature
|
|||
|
Signature
(if Joint Tenants
Or
Tenants in Common)
|
Print
Name of Signatory and
Capacity
in which Signed
|
|||
5
