Ex 10.4 Subscription Agreement and Investor Questionnaire
SUBSCRIPTION AGREEMENT
ARMOR ELECTRIC, INC.
GENTLEMEN,
The undersigned is writing to advise you of the following terms and
conditions under which the undersigned hereby offers to subscribe (the "Offer")
for ___________ shares of the common stock of Armor Electric, Inc. (the
"Company"), par value $_____ per share ("Common Stock") upon the terms set forth
herein. The investment will be $__________. All funds received will be deposited
directly in the treasury of the Company.
1. SUBSCRIPTION
Subject to the terms and conditions set forth in this
subscription agreement, the undersigned hereby offers to purchase ___________
shares of Common Stock for an aggregate purchase price of $___________.
If the Offer is accepted, payment for the shares is being made
by the delivery of $__________ by cash, check, or money order payable to the
order of Armor Electric, Inc. contemporaneously herewith.
2. CONDITIONS TO OFFER
The offering is made subject on the following conditions: (A)
that you shall have the right to accept or reject this Offer, in whole or in
part, for any reason whatsoever; and (B) that the undersigned agrees to comply
with the terms of this subscription agreement and to execute and deliver any and
all further documents necessary to become a stock holder in the Company.
Acceptance of this Offer shall be deemed given by the
countersigning of this subscription agreement on behalf of the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE UNDERSIGNED
The undersigned, to induce the Company to accept this Offer,
hereby warrants and represents as follows:
(A) The undersigned has sufficient liquid assets to sustain a
loss of the undersigned's entire investment.
(B) The Company has not made any other representations or
warranties to the undersigned with respect to the Company or rendered any
investment advice.
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(C) The undersigned has knowledge and experience in financial,
investment, and business matters and is capable of evaluating the merits and
risks of the prospective investment in the securities of the Company. The
undersigned has consulted with such independent legal counsel or other advisers
as deemed appropriate to assist the undersigned in evaluating the proposed
investment in the Company.
(D) The undersigned represents that he or she (i) has adequate
means of providing for current financial needs and possible personal
contingencies and has no need for liquidity of investment in the Company; (ii)
can afford (a) to hold unregistered securities for an indefinite period of time
and (b) to sustain a complete loss of the entire amount of the subscription; and
(iii) has not made an excessive overall commitment to investments that are not
readily marketable.
(E) The undersigned understands that the offer and sale of the
Common Stock is made without the use of an offering memorandum and the
undersigned has been afforded the opportunity to ask questions of and receive
answers from the officers and/or directors of the Company acting on its behalf
concerning the terms and conditions of this transaction and to obtain any
additional information, to the extent that the Company possesses such
information or can acquire it without unreasonable effort or expense, necessary
to verify the accuracy of the information furnished. The undersigned has availed
himself or herself of such opportunity to the extent considered appropriate to
permit evaluation of the merits and risks of an investment in the Company. It is
understood that all documents, records, and books pertaining to this investment
have been made available for inspection and that the books and records of the
Company will be available upon reasonable notice for inspection by investors
during reasonable business hours at its principal place of business.
(F) The undersigned acknowledges that the shares of Common
Stock have not been registered under the Act in Reliance on an exemption for
transactions by an issuer not involving a public offering and further
understands that the undersigned is purchasing the Common Stock without being
furnished any prospectus setting forth all of the information that may be
required to be furnished under the Act.
(G) The shares of Common Stock being subscribed are being
acquired solely for the account of the undersigned for personal investment and
not with a view to, or for resale in connection with, any distribution.
(H) The undersigned represents and agrees that the undersigned
will not sell, transfer, pledge, or otherwise dispose of or encumber the shares
except pursuant to the applicable rules and regulations under the Act or
applicable state securities laws; prior to any such sale, transfer, pledge,
disposition, or encumbrance, the undersigned will, upon request, furnish the
Company and its transfer agent with an opinion of counsel satisfactory to the
Company in form and substance that registration under the Act and any applicable
state securities laws is not required.
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(I) The undersigned hereby agrees that the Company may insert
the following or similar legend on the face of the Common Stock to be issued, if
it is required to comply with the Act or state securities laws:
These securities have not been registered under the
Securities Act of 1933, as amended (Act), or any state securities laws and may
not be sold or otherwise transferred or disposed of except pursuant to an
effective registration statement under the Act and any applicable state
securities laws, or pursuant to an opinion of counsel satisfactory to counsel to
the Company that an exemption from registration under the act and any applicable
state securities laws is available.
The undersigned certifies that each of the foregoing
representations and warranties set forth in subsections (A) through (I)
inclusive of the Section 3 are true as of the date hereof and shall survive such
date.
4. SPECIFIC STATE LEGENDS
EACH FLORIDA RESIDENT WHO SUBSCRIBES FOR THE PURCHASE OF
COMMON STOCK HEREIN HAS THE RIGHT, PURSUANT TO SECTION 517.061(11)(A)(5) OF THE
FLORIDA SECURITIES ACT, TO WITHDRAW HIS OR HER SUBSCRIPTION FOR THE PURCHASE AND
RECEIVE A FULL REFUND OF ALL MONIES PAID WITHIN THREE (3) BUSINESS DAYS AFTER
THE EXECUTION OF THE SUBSCRIPTION AGREEMENT OR PAYMENT FOR THE PURCHASE HAS BEEN
MADE, WHICHEVER IS LATER. WITHDRAWAL WILL BE WITHOUT ANY FURTHER LIABILITY TO
ANY PERSON. TO ACCOMPLISH THIS WITHDRAWAL, A SUBSCRIBER NEED ONLY SEND A LETTER
OR TELEGRAM TO THE COMPANY AT THE ADDRESS SET FORTH IN THIS CONFIDENTIAL TERM
SHEET INDICATION HIS INTENTION TO WITHDRAW.
SUCH LETTER OR TELEGRAM SHOULD BE SENT AND POSTMARKED PRIOR TO
THE END OF THE AFOREMENTIONED THIRD BUSINESS DAY. IT IS ADVISABLE TO SEND SUCH
LETTER BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ENSURE THAT IT IS
RECEIVED AND ALSO TO EVIDENCE THE TIME IT WAS MAILED. IF THE REQUEST IS MADE
ORALLY, IN PERSON, OR BY TELEPHONE TO AN OFFICER OF THE COMPANY, A WRITTEN
CONFIRMATION THAT THE REQUEST HAS BEEN RECEIVED SHOULD BE REQUESTED.
5. REVOCATION
The undersigned agrees that he or she shall not cancel,
terminate, or revoke this Subscription Agreement or any agreement of the
undersigned made hereunder and that this Subscription Agreement shall survive
the death or disability of the undersigned.
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6. TERMINATION OF SUBSCRIPTION AGREEMENT
If the Company elects to cancel this Subscription Agreement,
provided that it returns to the undersigned, without interest and without
deduction, all sums paid by the undersigned, this Offer shall be null and void
and of no further force and effect, and no party shall have any rights against
any other party hereunder.
7. MISCELLANEOUS
(A) All notices or other communications given or made hereunder shall be in
writing and shall be mailed by registered or certified mail, return receipt
requested, postage prepaid, to the undersigned at
_____________________________________________________
(B) This Subscription Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and may be amended only
by a writing executed by all parties.
8. CERTIFICATION
The undersigned certifies that he or she has read this entire
Subscription Agreement and that every statement on his or her part made and set
forth herein is true and complete.
IN WITNESS WHEREOF the undersigned has executed this
Subscription Agreement on the date his or her signature has been subscribed to
below.
DATE: ____________________________
INVESTOR: ____________________________
ARMOR ELECTRIC, INC.
By: ____________________________
Authorized Officer
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INVESTOR SUITABILITY QUESTIONNAIRE
THE FOLLOWING INVESTOR SUITABILITY QUESTIONNAIRE IS ESSENTIAL TO ENSURE THAT
THIS PRIVATE OFFERING IS CONDUCTED IN FULL COMPLIANCE WITH RULE 504 OF
REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
QUESTIONNAIRE WILL REMAIN ON FILE IN ABSOLUTE CONFIDENCE IN THE OFFICE OF THE
COMPANY. YOUR COOPERATION IN THE FULL COMPLETION OF THE INVESTOR QUESTIONNAIRE
IS GREATLY APPRECIATED.
This questionnaire is being provided to you in connection with your
possible purchase of stock (the "Interest") in Armor Electric, Inc., a Florida
corporation (the "Corporation").
The undersigned understands that this questionnaire is to enable the
Corporation to discharge their responsibilities under the private placement
exemption and rely upon the information contained herein. Accordingly, the
undersigned represents as follows:
(i) The information contained herein is complete and accurate
and may be relied upon by the Corporation and their advisers; and
(ii) The undersigned will notify the Corporation immediately
of any material change in any such information occurring prior to the acceptance
or rejection of its subscription.
The undersigned also understands and agrees that, although the
Corporation will attempt to keep the information provided in the answers to this
questionnaire strictly confidential, the Corporation may present this
questionnaire and the information provided in answers to it to such parties as
they deem advisable if called upon to establish the availability under any
federal or state securities laws of an exemption from registration or if the
contents hereof are relevant to any issue in any action, suit, or proceeding to
which the Corporation is a party or by which the Corporation is or may be bound.
This questionnaire does not constitute an offer by the Corporation to
sell Interests but is a request for information.
1. Subscriber qualifies as an "accredited investor" pursuant to Rule
501(a) of Regulation D, as promulgated by the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Securities Act"), by virtue
of Subscriber's meeting at least one of the requirements set forth below, as
indicated by Subscriber's initials to the right of the applicable
subparagraph(s):
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(a) The undersigned is a natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of this investment exceeds
$1,000,000. The term "net worth" means the excess of total assets over total
liabilities. In computing net worth the principal residence of the investor must
be valued at cost, including cost of improvements, or at recently appraised
value by an institutional lender making a secured loan, net of encumbrances.
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(b) The undersigned is a natural person who had an individual income in excess
of $200,000 in each of the two most recent years or joint income with that
person's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current year.
Individual income is defined as adjusted gross income (as reported for federal
income tax purposes), less any income earned by a spouse or from property owned
by a spouse increased by the following amounts (not attributable to 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 Corporation and (iii) any
deductions claimed for depletion;
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(c) The undersigned is a corporation or partnership, not formed for the specific
purpose of acquiring the Interest, with total assets in excess of $5,000,000;
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(d) The undersigned is an organization described in Section 501(c)(3) of the
Internal Revenue Code or a Massachusetts or similar business trust, not formed
for the specific purpose of acquiring the Interest, with total assets in excess
of $5,000,000;
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(e) The undersigned is a trust with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Interest whose investments are
directed by a sophisticated person as described in Rule 506(b)(2)(ii) as adopted
by the Securities and Exchange Commission pursuant to the Securities Act:
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(f) The undersigned is a director or an executive officer of the Corporation;
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(g) The undersigned is a bank as defined in Section 3(a)(2) of the Securities
Act, or a savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or
fiduciary capacity; an insurance company as defined in Section 2(13) of the
Securities Act; a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended; 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; a Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958; a plan
established and maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its political subdivisions for the benefit of
its employees, if such plan has total assets in excess of $5,000,000; or an
employee benefit plan within the meaning of Title 1 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 either a bank,
savings and loan association, insurance company, or registered investment
advisor, or if the employee benefit plan has total assets in excess of
$5,000,000, or, if a self-directed plan, with investment decisions made solely
by persons that are accredited investors;
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(h) The undersigned is a private business development company, as defined in
Section 202(a)(22) of the Investment Advisors Act of 1940; or
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(i) The undersigned is an entity in which all of the equity owners meet the
requirements of at least one of the above subparagraphs.
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2. Subscriber is a qualified investor under Section 25102(f) of the California
Corporate Securities Laws of 1968, as amended, by virtue of the fact that:
(a) Subscriber either has a preexisting personal or business relationship with
the Corporation or any of its officers, directors or controlling persons, or by
reason of Subscriber's business or financial experience or the business or
financial experience of Subscriber's "professional advisor(s)" (as defined in
Section 260.102.12(g) of the Rules of the California Commissioner of
Corporation), who are unaffiliated with and who are not compensated by the
Corporation or any affiliate or selling agent of the Corporation, directly or
indirectly, Subscriber has the capacity to protect Subscriber's own interest in
connection with this investment; AND,
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(b) Subscriber is purchasing for his, her, or its own account (or a trust
account if Subscriber is a trustee) and not with a view to or for sale in a
connection with any distribution of the securities to be acquired.
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3. Investor is a bona fide resident of the State of ________ and the
Country of ___________________.
4. Subscriber Information
FOR INDIVIDUAL SUBSCRIBERS
(Please Print or Type)
Name of Subscriber: _____________________________________
Telephone Number: _____________________________________
Street Address: _____________________________________
City, State or Territory, Zip: _____________________________________
Country: _____________________________________
Taxpayer ID, or Social Security Number,
if applicable: _____________________________________
Signature: _____________________________________
Date: _____________________________________
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FOR CORPORATE, PARTNERSHIP OR TRUST SUBSCRIBERS
(Please Print or Type)
Name of Subscriber: _____________________________________
Telephone Number: _____________________________________
Street Address: _____________________________________
City, State or Territory, Zip: _____________________________________
Country: _____________________________________
Taxpayer ID, or Social Security Number,
if applicable: _____________________________________
Name of Authorized Signatory: _____________________________________
Date: _____________________________________
Check Type of Ownership:
___________Corporation ____________Partnership
___________Trust or Pension Plan ____________Other: __________________
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