EXHIBIT 10.11
SUBSCRIPTION
AGREEMENT
Page 1
Netivation, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxx x'Xxxxx, Xxxxx 00000
Gentlemen:
This will acknowledge that the undersigned hereby irrevocably subscribes to
purchase the number of shares of Preferred Stock of Netivation, Inc. (the
"Company") at a price of $1.25 per share for the aggregate purchase price set
forth below my signature at the foot of this Agreement. The Preferred Stock is
offered in blocks consisting of 20,000 shares of 8% Preferred Convertible Stock
(the "Securities" and the "Preferred Stock"), for an aggregate purchase price of
$25,000, convertible at a ratio of one share of common stock of the Company for
each share of Preferred Stock. Interest on the Preferred Stock will be "paid in
kind" or cash at the discretion of the Company for a period of three years, from
the date of the closing of the Offering. After three years from the date of the
closing of the Offering, if the Preferred Stock has not been redeemed or has not
been converted and the Company has a positive cash flow in sufficient amount to
pay accrued Preferred Stock dividends ("Sufficient Positive Cash Flow"), then
any Preferred Stock dividend will be payable in cash. The Preferred Stock may be
redeemed by the Company upon notice and will convert at the time of any public
offering of the Company's common stock, if any, or the at the time of an
acquisition of the Company.
The Company is offering a maximum of 2,400,000 shares of 8% Convertible
Preferred Stock on a best efforts, with an 800,000 shares minimum, and a
2,400,000 maximum basis to a limited number of accredited investors (the
"Offering"). In the event all of the offered Securities are sold, the Company
may agree to offer an additional 800,000 shares of Preferred Stock. This
Offering is being made pursuant to exemptions available under the Securities Act
of 1933, as amended (the "Act"), and under certain other laws, including the
securities laws of certain states. The terms of the Offering, a description of
the Securities and relevant information concerning the Company are set forth in
Company's Confidential Private Placement Memorandum (the "Memorandum"), a copy
of which has been provided to the undersigned.
The undersigned acknowledges that the Securities purchased hereby have not
been registered under the Act, or the securities laws of any state, that the
Securities are being purchased for investment purposes and not with a view to
distribution or resale, nor with the intention of selling, transferring or
otherwise disposing of all or any part of such Securities for any particular
price, or at any particular time, or upon the happening of any particular event
or circumstance, except selling, transferring, or disposing of said Securities
made in full compliance with all applicable provisions of the Act, the Rules and
Regulations promulgated by the Securities and Exchange Commission thereunder,
and applicable state securities laws; and that such Securities must be held
indefinitely unless they are subsequently registered under the Act, or an
exemption from such registration is available, and will require an opinion of
counsel that registration is not required under the Act or such state securities
laws, and that the certificates to be issued will bear a legend indicating that
transfer of the Securities have not been so registered and the legend may bear
the following or similar words:
The Securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended. These
Securities have been acquired for investment purposes and not with a
view to distribution or resale, and may not be sold, assigned,
pledged, hypothecated or otherwise transferred without an closing
Registration Statement for such Securities under the Securities Act of
1933, as amended, and applicable state securities laws, or an opinion
of counsel satisfactory to the Issuer of these Securities to the
effect that registration is not required under such Act or such state
securities laws.
Additionally, such Securities may bear additional legends as are required
by or stated in the Memorandum or may be required by applicable state securities
laws.
In connection with the purchase of the Securities, the undersigned
acknowledges that the Company will be relying on the information and on the
representations set forth herein, and I hereby represent, warrant, agree and
acknowledge that:
(a) I have not received any general solicitation or general
advertising regarding the purchase of the Securities;
Page 2
(b) There is no finder in connection with this transaction, but the
Company may employ NASDAQ member broker/dealers who will receive such
compensation as described in the Memorandum;
(c) I have sufficient knowledge and experience of financial and business
matters so that I am able to evaluate the merits and risks of purchasing the
Securities and I have had substantial experience in previous private and public
purchases of securities;
(d) I do not require for my liquidity needs the funds being used to
purchase the Securities, I have adequate means to provide for my personal needs,
and possess the ability to bear the economic risk of holding the Securities
purchased hereunder indefinitely, and can afford a complete loss on the purchase
of these Securities;
(e) I have been furnished with a copy of the Memorandum and any documents
and information which may have been made available upon request, have carefully
read the Memorandum and such documents and understand and have evaluated the
risks of a purchase of the Securities, and I have relied solely (except as
indicated in subsection (f) below) on the Memorandum and requested documents in
formulating my investment decision;
(f) During the transaction and prior to purchase, I have read this
Subscription Agreement and have had full opportunity to ask questions of and
receive answers from the Company and its officers and authorized representatives
regarding the terms and conditions of this Agreement, and the transactions
contemplated hereby, as well as the affairs of the Company and related matters.
I understand that I may have access to whatever additional information or
documents concerning the Company, its financial condition, its business, its
prospects, its management, its capitalization, and other similar matters that I
desire. In addition, I understand that I may have, at the offices of the
Company, at any reasonable hour, after reasonable prior notice, access to all
documents and information concerning the Company. I confirm that I do not desire
to receive any further information;
(g) I understand the meaning of the first five paragraphs of this
Subscription Agreement, and that a restrictive legend or legends will be placed
upon the certificates representing the Securities purchased hereunder, and that
instructions will be placed with the transfer agent for the Securities
prohibiting the transfer of the Securities absent full compliance with the Act
and applicable state securities laws;
(h) I understand that the purchase price of the Securities being purchased
hereby have been arbitrarily determined and bears no relationship to the assets
or book value of the Company, or other customary investment criteria;
(i) I understand that this Subscription Agreement is subject to the
Company's acceptance and may be rejected by the Company at any time prior to the
Closing, in either of their sole discretion, notwithstanding prior receipt by me
of notice of acceptance of my subscription;
(j) I acknowledge that there is no contract, undertaking, agreement or
arrangement with any person to sell, transfer or pledge to such person or anyone
else the Securities or any part thereof, and the undersigned has no present
plans to enter into any such contract, undertaking, agreement or arrangement;
(k) I understand that the Company, in their sole discretion, has the right
to make certain changes as they deem necessary in the Securities, as follows,
increasing the lock-up period or imposing an NASDAQ lock-up, in the event such
changes are required in order for the Company to have its securities listed for
Quotation in NASDAQ;
(1) I have read and fully understand the Memorandum of the Company
including all of the "Risk Factors" set forth therein; and
(m) I understand that my purchase of the securities will create certain
registration rights as follows:
(1) The holders of Registrable Securities as defined below will
have the right to one (but not more than one) "demand"
registration. Subject to the limitations of subparagraph 4
below, such "demand" registration may be requested at any
time following a period of one year after the closing of an
initial public offering of shares of Common Stock of the
Company ("IPO"), if any, by the delivery of a written demand
to the Company. Such demand must be executed by the Majority
Holders (as defined below) and must request
Page 3
the registration of not less than 50% of the Registrable
Securities. Any such demand shall also state the names of the
holders requesting registration, the number of Registrable
Securities they wish to register and such holders' plan of
distribution.
Following a demand that meets the requirements described above,
the Company will as expeditiously as possible, but not later than
60 days after receipt of the demand, prepare and file with the
Securities and Exchange Commission ("Commission") a registration
statement on any form for which the Company then qualifies or
which counsel for the Company shall deem appropriate and which
form shall be available for the sale of the Registrable
Securities to be registered thereunder in accordance with the
intended methods of distribution thereof, and use its best
efforts to cause such filed registration statement to become
effective as soon as possible and to remain current for a period
of not less than the greater of (i) 9 months from the effective
date thereof, or (ii) sixteen months from the date of the last
audited financial statements contained in such Registration
Statement.
In connection with a "demand" registration, the Company will use
its best efforts to (i) register or qualify the Registrable
Securities under such other securities or blue sky laws of such
jurisdictions in the United States as any holder thereof,
reasonably (in light of such holder's intended plan of
distribution) requests and (ii) cause such Registrable Securities
to be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other
acts and things that may be reasonably necessary or advisable to
enable such selling holder to consummate the disposition of the
Registrable Securities owned by such selling holder; provided
that the Company will not be required to (iv) qualify generally
to do business in any jurisdiction where it would not otherwise
be required to qualify but for this subparagraph, (v) subject
itself to taxation in any such jurisdiction or (vi) consent to
general services of process in any such jurisdiction.
If the Company furnishes to the Majority Holders who have
requested a "demand" registration a certificate signed by the
President of the Company that in the good faith judgment of the
Board of Directors it would be seriously detrimental to the
Company or its shareholders for a registration statement to be
filed in the near future, then the Company's obligation to use
its best efforts to cause a "demand" registration statement to
become effective will be deferred for a period not to exceed 180
days from the date of receipt by the Company of the "demand"
registration request.
(2) The holders of Registrable Securities will have one "demand"
registration right subject to an underwriter's out clause, and
will have unlimited rights to "piggyback" on a registration
initiated by the Company subject to an underwriter's out clause.
If at any time after the completion of the IPO, if any, the
Company shall determine to register any of its securities, either
for its own account or the account of security holders, other
than (i) a registration relating solely to employee benefit
plans, or (ii) a registration relating solely to a transaction
covered by Commission Rule 145, the Company will promptly give to
each holder of Registrable Securities written notice of the
proposed registration and will include in such registration (and
any related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all the
Registrable Securities specified in a written request or
requests, made by holders of Registrable Securities within 20
days after receipt of such written notice from the Company.
In the event the Company gives notice of a proposed registration
as described above that involves an underwriting, the Company
shall so advise the holders of Registrable Securities as a part
of the written notice given to them. In such event the right of
any holder to participate in such registration shall be
conditioned upon such holder's participation in such
underwriting, and the inclusion of such holder's Registrable
Securities in the underwriting shall be subject to the
limitations provided herein. All
Page 4
holders proposing to distribute their Registrable Securities
through such underwriting shall (together with the Company and
any other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such
underwriting by the Company.
Anything herein to the contrary notwithstanding, if the
underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the
managing underwriter may limit the number of securities to be
included in the secondary portion of such registration. The
Company shall so advise all holders of Registrable Securities and
any other holders distributing their securities through such
underwriting, and the number of shares of Registrable Securities
and other outstanding securities that may be included in the
registration and underwriting shall be allocated among all
holders thereof in proportion, as nearly as practicable, to the
respective amounts of securities entitled to inclusion in such
registration held by all such holders at the time of filing the
registration statement. To facilitate the allocation of shares in
accordance with the above provisions, the Company may round the
number of shares allocated to any holder to the nearest 100
shares. If any holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. Any
Registrable Securities excluded from such underwriting shall be
withdrawn from such registration but will remain eligible for one
additional "piggyback" registration pursuant to the procedures
described above.
(3) In connection with any "demand" or "piggyback" registration, the
Company shall pay the following registration expenses: (i) all
registration and filing fees of the Commission and the National
Association of Securities Dealers, Inc., (ii) fees and expenses
incurred in complying with state securities or blue sky laws
(including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable
Securities), (iii) printing expenses, (iv) internal expenses
(including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties),
(v) the fees and expenses incurred in connection with any listing
of the Registrable Securities, and (vi) reasonable fees and
disbursements of counsel for the Company and customary fees and
expenses for independent certified public accountants retained by
the Company. The Company shall have no obligation to pay any
underwriting fees, discounts, commissions, accounting or other
expenses attributable to the sale of Registrable Securities, or
any out-of-pocket expenses of the selling holders (or the agents
who manage their accounts) including the expenses of any legal
counsel selected by the selling holders to represent them in
connection with the sale of the Registrable Securities.
(4) Except as described above in connection with Registrable
Securities excluded from an underwritten "piggyback"
registration, the Company shall have no further obligation to
register any Registrable Securities after it has completed one
"demand" registration or "piggyback" registration, as the case
may be. The Company will have no obligation to include in any
"demand" or "piggyback" registration statement any shares of the
Registrable Securities that are eligible for sale pursuant to
Rule 144 under the Act. In addition, the Company will have no
obligation to register any of the Registrable Securities after
the second anniversary of the earlier to occur of (i) the
expiration date of the Warrants or (ii) the date upon which all
of the Warrants have been exercised in full.
Page 5
(5) For purposes of the foregoing, the following terms have the
meanings set forth below:
(i) The term "Registrable Securities" means the shares of
Common Stock included in the Preferred Stock
(ii) The term "Majority Holders" means the holders holding
in the aggregate more than 50% of the Registrable
Securities
(6) Following a Demand, the Company will as expeditiously as
possible, but not later than 60 days after receipt of the Demand,
prepare and file with the Securities and Exchange Commission
("Commission") a registration statement on any form for which the
Company then qualifies or which counsel for the Company shall
deem appropriate and which form shall be available for the sale
of the Registrable Securities to be registered thereunder in
accordance with the intended methods of distribution thereof, and
use its best efforts to cause such filed registration statement
to become closing as soon as possible and to remain current for a
period of not less than the greater of (i) 9 months from the
closing date thereof, or (ii) 16 months from the date of the last
audited financial statements contained in, such Registration
Statement.
Except for any rescission rights that may be provided under applicable
laws, I am not entitled to cancel, terminate, or revoke my subscription, and any
agreements made in connection herewith shall survive my death or disability.
I hereby agree to indemnify and hold harmless the Company, the officers,
directors, stockholders, employees, agents and attorneys against any and all
losses, claims, demands, liabilities and expenses (including reasonable legal or
other expenses) incurred by each such person in connection with defending or
investigating any claims or liabilities, whether or not resulting in any
liability to such person to which any such indemnified party may become subject
under the Act, under any other statute, at common law or otherwise, insofar as
such losses, claims, demands, liabilities and expenses (a) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in this Subscription Agreement and Accredited Investor Questionnaire
or (b) arise out of or are based upon any breach of any representation, warranty
or agreement contained herein.
THIS SUBSCRIPTION AGREEMENT, PRIOR TO ITS ACCEPTANCE BY THE COMPANY AT THE
CLOSING OF THE OFFERING, IS NOT TRANSFERABLE OR ASSIGNABLE BY THE UNDERSIGNED.
FOLLOWING THE ACCEPTANCE OF THIS SUBSCRIPTION AGREEMENT BY THE COMPANY AT THE
CLOSING OF THIS OFFERING AND THE PURCHASE OF THE SECURITIES SUBSCRIBED FOR
THEREAT, THIS SUBSCRIPTION AGREEMENT AND THE RIGHTS THEREUNDER MAY BE
TRANSFERRED OR ASSIGNED BY THE SUBSCRIBER AND/OR ITS SUCCESSORS AND ASSIGNS, IN
WHOLE OR IN PART, TO ANY PERSON TO WHOM ALL OR ANY PORTION OF THE SECURITIES ARE
TRANSFERRED OR ASSIGNED. THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF IDAHO APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE IN CONNECTION WITH
ANY ACTION CONCERNING THE PROVISIONS OF THE SUBSCRIPTION AGREEMENT. THIS
INSTRUMENT CONTAINS THE ENTIRE AGREEMENT OF THE PARTIES, AND THERE ARE NO
REPRESENTATIONS, COVENANTS OR OTHER AGREEMENTS EXCEPT AS STATED OR REFERRED TO
HEREIN. NEITHER THIS SUBSCRIPTION AGREEMENT NOR ANY PROVISION HEREOF SHALL BE
MODIFIED, DISCHARGED OR TERMINATED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY
THE PARTY AGAINST WHOM ANY WAIVER, CHANGE, DISCHARGE OR TERMINATION IS SOUGHT.
Page 6
TO ALL PROSPECTIVE PURCHASERS:
------------------------------
THE SECURITIES BEING OFFERED HEREBY HAVE NOT BEEN REGISTERED OR APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
REGULATORY AUTHORITY OF ANY STATE, NOR HAS THE COMMISSION OR ANY SUCH AUTHORITY
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS BOOKLET. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
THESE SECURITIES ARE BEING OFFERED HEREBY IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, WHICH EXEMPTION DEPENDS UPON THE
EXISTENCE OF CERTAIN FACTS, INCLUDING BUT NOT LIMITED TO THE REQUIREMENTS THAT
THE SECURITIES ARE NOT BEING OFFERED THROUGH GENERAL ADVERTISING OR GENERAL
SOLICITATION, ADVERTISEMENTS OR COMMUNICATIONS IN NEWSPAPERS, MAGAZINES OR OTHER
MEDIA, OR BROADCASTS ON RADIO OR TELEVISION, AND THAT THESE SUBSCRIPTION
DOCUMENTS SHALL BE TREATED AS CONFIDENTIAL BY THE PERSONS TO WHOM THEY ARE
DELIVERED. ANY DISTRIBUTION OF THESE SUBSCRIPTION DOCUMENTS OR ANY PART HEREOF
OR THEREOF OR DIVULGENCE OF ANY OF THEIR CONTENTS SHALL BE UNAUTHORIZED.
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS
INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THESE SECURITIES ARE
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE SUBSCRIPTION DOCUMENTS CONSTITUTE AN OFFER ONLY IF A NAME APPEARS ON THE
APPROPRIATE PLACE ON THE FRONT COVER. ANY REPRODUCTION OR DISTRIBUTION OF THE
SUBSCRIPTION DOCUMENTS, IN WHOLE OR IN PART, OR THE DIVULGENCE OF ANY OF THEIR
CONTENTS TO ANY PERSON OTHER THAN THE PERSON NAMED ON THE COVER PAGE, WITHOUT
THE PRIOR WRITTEN CONSENT OF THE COMPANY IS PROHIBITED. THE COMPANY HAS THE
RIGHT TO REJECT SUBSCRIPTIONS IN WHOLE OR IN PART.
SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT
IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
FOR RESIDENTS OF FLORIDA
------------------------
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE FLORIDA
SECURITIES AND INVESTOR PROTECTION ACT, AND THEY THEREFORE HAVE THE STATUS OF
SECURITIES ACQUIRED IN AN EXEMPT TRANSACTION UNDER SECTION 517.061 OF THE
FLORIDA SECURITIES AND INVESTOR PROTECTION ACT. EACH OFFEREE WHO IS A FLORIDA
RESIDENT SHOULD BE AWARE THAT SECTION 517.061(11)(a)(5) OF THE FLORIDA
SECURITIES AND INVESTOR PROTECTION ACT PROVIDES, IN RELEVANT PART, AS FOLLOWS:
"WHEN SALES ARE MADE TO FIVE OR MORE PERSONS IN [FLORIDA], ANY SALE IN [FLORIDA]
MADE PURSUANT TO SECTION 517.061(11) SHALL BE VOIDABLE BY THE PURCHASER IN SUCH
SALE EITHER WITHIN 3 DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY THE
PURCHASER TO THE ISSUER, AN AGENT OF THE ISSUER OR AN ESCROW AGENT OR WITHIN 3
DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH PURCHASER,
WHICHEVER OCCURS EARLIER."
Page 7
FOR RESIDENTS OF NEW YORK
-------------------------
THE UNDERSIGNED UNDERSTANDS THAT THE OFFERING OF THESE SECURITIES HAS NOT BEEN
REVIEWED BY THE ATTORNEY GENERAL OF THE STATE OF NEW YORK BECAUSE OF THE
OFFEROR'S REPRESENTATIONS THAT THIS IS INTENDED TO BE A NON-PUBLIC OFFERING
PURSUANT TO SEC REGULATION D, AND THAT IF ALL THE CONDITIONS AND LIMITATIONS OF
REGULATION D ARE NOT COMPLIED WITH, THE OFFERING WILL BE RESUBMITTED TO THE
ATTORNEY GENERAL FOR AMENDED EXEMPTION. THE UNDERSIGNED FURTHER UNDERSTANDS THAT
ANY OFFERING LITERATURE USED IN CONNECTION WITH THIS OFFERING HAS BEEN PREFILED
WITH THE ATTORNEY GENERAL AND HAS NOT BEEN REVIEWED BY THE ATTORNEY GENERAL. THE
SECURITIES ARE BEING PURCHASED FOR THE UNDERSIGNED'S OWN ACCOUNT FOR INVESTMENT,
AND NOT FOR DISTRIBUTION OR RESALE TO OTHERS. THE UNDERSIGNED AGREES THAT THE
UNDERSIGNED WILL NOT SELL OR OTHERWISE TRANSFER THESE SECURITIES UNLESS THEY ARE
REGISTERED UNDER THE FEDERAL SECURITIES ACT OF 1933 OR UNLESS AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE. THE UNDERSIGNED REPRESENTS THAT THE UNDERSIGNED
HAS ADEQUATE MEANS OF PROVIDING FOR HIS CURRENT NEEDS AND POSSIBLE PERSONAL
CONTINGENCIES AND THAT THE UNDERSIGNED HAS NO NEED FOR LIQUIDITY OF THIS
INVESTMENT.
THE UNDERSIGNED FURTHER UNDERSTANDS THAT ALL DOCUMENTS, RECORDS AND BOOKS
PERTAINING TO THE INVESTMENT HAVE BEEN MADE AVAILABLE FOR INSPECTION BY HIS
ATTORNEY, HIS ACCOUNTANT AND/OR HIS OFFEREE REPRESENTATIVE AND HIMSELF, AND THAT
THE BOOKS AND RECORDS OF THE ISSUER WILL BE AVAILABLE UPON REASONABLE NOTICE,
FOR INSPECTION BY INVESTORS AT REASONABLE HOURS AT ITS PRINCIPAL PLACE OF
BUSINESS.
Dated: ___________, 1998
ENTITY SUBSCRIBERS SIGN HERE: INDIVIDUAL SUBSCRIBERS SIGN HERE:
________________________________ _____________________________________
Print Name of Subscriber Print Name of Subscriber
By:_____________________________ _____________________________________
Signature
________________________________ _____________________________________
Print Name and Title of Person Signature of Joint Subscriber, if any
Signing
________________________________ _____________________________________
Taxpayer Identification Number Social Security Number
Mailing Address: Residence Address (No P.O. Box Numbers):
________________________________ _____________________________________
________________________________ _____________________________________
Page 8
Number of shares of Preferred Stock Subscribed:________________
Total Purchase Price: $_______
Payment Enclosed: $___________
(Check One)
____ Individual
____ Tenants-in-Common
____ Joint tenants with right of survivorship (each must sign)
____ Community Property*
____ In Partnership
____ As custodian, trustee or agent for Corporation
*If the Investor(s) is a resident of a community property state (such as
Florida) the subscription should indicate whether the Securities will be owned
as separate or community property and are to be registered jointly in the name
of more than one person, the nature of the joint ownership should be indicated
(i.e., tenants in common, joint tenants with right of survivorship, tenants by
the entirety, or other designation as may be permitted by law of the Investor's
domicile).
Subscribers are requested to use the appropriate acknowledgement or have two
--
witnesses, not associated with the subscriber witness the subscriber's
signature.
WITNESSES
First Witness:
-------------
Print Name of Witness:___________________ Print Address:______________________
Signature of Witness:____________________ ______________________
Second Witness:
--------------
Print Name of Witness:___________________ Print Address:______________________
Signature of Witness:____________________ ______________________
Page 9
INDIVIDUAL ACKNOWLEDGEMENT
STATE OF )
ss:
COUNTY OF )
On the ____ day of _______________ 1998, before me personally came
________________________________ and _______________________________ to me known
to be the individual(s) described in and who executed the foregoing instrument,
and acknowledged that (he)(she)(they) executed the same.
[Notary Seal]
________________________________
Notary Public
My Commission Expires:__________
CORPORATE ACKNOWLEDGEMENT
STATE OF )
ss:
COUNTY OF )
On the _______ day of ______________, 1998, before me personally came
___________________________ to me known, who, being by me duly sworn, did depose
and say that deponent resides at ___________________________; deponent is
_________________________ of ______________________________, the corporation
described in and which executed the foregoing instrument; and that deponent
signed (his)(her) name by order of the Board of Directors of said corporation.
[Notary Seal]
________________________________
Notary Public
My Commission Expires:__________
PARTNERSHIP ACKNOWLEDGEMENT
STATE OF )
ss:
COUNTY OF )
The foregoing instrument was sworn to and acknowledged before me on
__________________, 1998, by ________________________ of _____________________,
a partnership, on behalf of the partnership.
[Notary Seal]
________________________________
Notary Public
My Commission Expires:__________
TRUST ACKNOWLEDGEMENT
STATE OF )
Page 10
ss:
COUNTY OF )
The foregoing instrument was sworn to and acknowledged before me on
______________, 1998, by _______________________ of __________________________
as Trustee of the ___________________________________ Trust.
[Notary Seal]
________________________________
Notary Public
My Commission Expires:___________
The foregoing subscription is hereby accepted by Netivation, Inc. this ____ day
of _______________, 1998 for ____ shares of Preferred Shares. Netivation, Inc.,
by its execution hereof, hereby confirms its agreement to be bound by the
provisions of this Agreement.
NETIVATION, INC.
By:_____________________________
(An Authorized Officer)
Page 11
NETIVATION
PREFERRED INVESTOR LIST
Number Amount
Cert. Of of Number
No. Investor Name Units Subscription of Shares
------------- ----- ------------ ---------
1ST CLOSING (11/10/98)
1 Ed and Xxxxxxx Xxxx Trust 1.00 $ 25,000 20,000.00
2 Xxxx X. Xxxxxxx 3.00 $ 75,000 60,000.00
3 Xxxx X. Xxxxx, Trustee/FBO Retirement Trust Fund 1.00 $ 25,000 20,000.00
4 Xxx Xxxx 1.50 $ 37,500 30,000.00
5 D. Xxxxx Xxxxx and Xxxxx X. Xxxxx 1.00 $ 25,000 20,000.00
6 Xxxx Xxxxxx 0.50 $ 12,500 10,000.00
7 Xxxxxxx X. Xxxxxxx 1.00 $ 25,000 20,000.00
8 Xxxxxxx X. Xxxxxx 0.50 $ 12,500 10,000.00
9 Xxxxxxx X. Xxxxxx, Xx. 1.00 $ 25,000 20,000.00
10 Xxxxxx X. Xxxxxxxxxx,Xx. and Xxxxxxxxx X. Xxxxxxxxxx 1.00 $ 25,000 20,000.00
11 Xxxxxx X. Xxxxxxxx 1.00 $ 25,000 20,000.00
12 Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx 1.00 $ 25,000 20,000.00
13 Cariplo Bank 2.00 $ 50,000 40,000.00
14 ICM Asset Management, Inc. 3.00 $ 75,000 60,000.00
15 Xxx Xxxxxxxxx 1.00 $ 25,000 20,000.00
16 Xxxx Xxxxxxx 0.50 $ 12,500 10,000.00
17 Xxxx X. Xxx, Xx. 2.00 $ 50,000 40,000.00
18 Xxxxxxx Investments LP 2.00 $ 50,000 40,000.00
19 Xxxxx X. Xxxxx, trustee 1.00 $ 25,000 20,000.00
20 Xxxxxxx and Xxxxxx Xxxx Xxxxxx 0.50 $ 12,500 10,000.00
21 Bank Inter-Madrid 1.00 $ 25,000 20,000.00
22 Xx. Xxxx X. Xxxxx 1.00 $ 25,000 20,000.00
23 Xxxxx X. Xxxxxxx 2.00 $ 50,000 40,000.00
24 Xxxxxx Xxxxxxx Xxxxx 2.00 $ 50,000 40,000.00
25 Xxxxxx Xxxxxxxx 1.00 $ 25,000 20,000.00
26 Xxxx Xxx Trust 1.00 $ 25,000 20,000.00
00 Xxxxxx Xxxx 1.00 $ 25,000 20,000.00
28 Xxxxxx Xxxxxxx 0.75 $ 18,750 15,000.00
29 Xxxxxxxxx Xxxxxx and Xxxxxx Xxxxxx 1.00 $ 25,000 20,000.00
30 Fortis Bank 2.00 $ 50,000 40,000.00
32 Xxxxx X. Xxxxxxxxx 1.00 $ 25,000 20,000.00
33 Xxxxx Xxxxxxx 1.00 $ 25,000 20,000.00
34 Xxxxxx Xxxxxxx 0.25 $ 6,250 5,000.00
=========================================
TOTAL 40.50 $1,012,500 810,000.00
2ND CLOSING (NOVEMBER 27, 1998)
35 Xxxxx Xxxxxxxx 1.00 $ 25,000 20,000.00
36 Xxxxxx Xxxxx 1.00 $ 25,000 20,000.00
37 Xxxxx Xxxxx 0.25 $ 6,250 5,000.00
38 Xxxxxx Xxxxxxxxxx 0.50 $ 12,500 10,000.00
39 Xxxxxxx X. Xxxxxxx 0.50 $ 12,500 10,000.00
40 Xxxxxxx X. Xxxx 1.00 $ 25,000 20,000.00
00 Xxxxxx X. Xxxxxxxxx 1.00 $ 25,000 20,000.00
42 Xxxxxxx X. Xxxxxxx 0.50 $ 12,500 10,000.00
43 Xxxxxxx X. Stickfaden 2.00 $ 50,000 40,000.00
44 Xxxxxx Xxxxxxx 0.50 $ 12,500 10,000.00
========================================
TOTAL 8.25 $ 206,250 165,000.00
Page 12
3RD CLOSING (DECEMBER 28, 1998)
45 Xxxxxxx Xxxxxx 0.50 $ 12,500 10,000.00
46 Xxxxxx Xxxxx, Xx. 1.00 $ 25,000 20,000.00
47 Xxxxxx X. Xxxxxxx 1.00 $ 25,000 20,000.00
48 Xxxxxxx X. Xxxxx 2.00 $ 50,000 40,000.00
49 Xxxx X. Xxxxxx 0.50 $ 12,500 10,000.00
50 Xxxxx X. Xxxx 2.00 $ 50,000 40,000.00
51 3 J's Investment Company 1.00 $ 25,000 20,000.00
52 Xxxxxxx X. Xxxxxxxx 1.00 $ 25,000 20,000.00
53 Xxxxxx de Quilettes & Frits de Quilettes & Xxxxx de Quilettes 1.00 $ 25,000 20,000.00
54 Xxxx X. Xxxxxx 0.25 $ 6,250 5,000.00
55 Xxxxxx Xxxxxxx 1.00 $ 25,000 20,000.00
56 Xxxxxx Xxxxxxxx 1.00 $ 25,000 20,000.00
57 Xxxxxxx X. Xxxxxxx 0.25 $ 6,250 5,000.00
58 Xxxxxx Xxxxxxx 0.50 $ 12,500 10,000.00
59 Xxxxxxxxx Xxxxxxxxxx, Xx. 1.00 $ 25,000 20,000.00
60 Xxxxxx X. Wieczoerk 1.00 $ 25,000 20,000.00
61 Xxxxxx X. X'Xxxxxxx 1.00 $ 25,000 20,000.00
62 Xxxxxx X. Xxxxxx 1.00 $ 25,000 20,000.00
63 Pathology Associates Inc./Profit Sharing & Money/Purchase 0.50 $ 12,500 10,000.00
Pension Plan FBO/Xxxxx Xxxxxxxx, Jr., MD
64 Xxx X. Gum 0.50 $ 12,500 10,000.00
65 Xxxx X. Xxxxxxx 1.00 $ 25,000 20,000.00
66 IHC, Inc. 1.00 $ 25,000 20,000.00
67 Xxxxx Xxxxxx & Xxxxxx Xxxxxx 1.00 $ 25,000 20,000.00
68 Xxxxx Xxxxxxxxxxxx 1.00 $ 25,000 20,000.00
69 Xxxx X. Xxxxxx 5.00 $ 125,000 100,000.00
70 Xxxxxxx Xxxxxxxx 5.00 $ 125,000 100,000.00
71 Xxxxx X. Xxxxx 0.50 $ 12,500 10,000.00
72 Xxxxxxx X. Xxxxx & Xxxxxxx Xxxxx 0.50 $ 12,500 10,000.00
73 Xxxx X. Xxxxxxx & Xxxxxx X. Xxxxxxx 0.25 $ 6,250 5,000.00
74 Xxxxx Xxxxxxx Xxxxxxxx 1.00 $ 25,000 20,000.00
75 Dr. Xxxxxx Xxxxx 1.00 $ 25,000 20,000.00
76 Svenska Handelsbanken S.A. 2.00 $ 50,000 40,000.00
77 Xxxxxx X. Xxxxxx 1.00 $ 25,000 20,000.00
78 Xxxxxx X. Xxxxxxxxxx 0.75 $ 18,750 15,000.00
79 Xxxxxxx X. Xxxxxxxx 1.00 $ 25,000 20,000.00
80 Xxxxxx X. Xxxxx & Xxx Xxxxx 1.00 $ 25,000 20,000.00
81 Xxxxx X. Xxxxx 6.00 $ 150,000 120,000.00
82 V. Xxxx Xxxxxxxxxxxx & Gernelda Xxxxxxxxxxxx 2.00 $ 50,000 40,000.00
83 Xxxxxx X. Xxxx & Xxxx Xxxxxxx Xxxx 2.00 $ 50,000 40,000.00
84 Xxxxx X. Xxxxxxx 1.00 $ 25,000 20,000.00
85 Dr. Xxxxxx Xxxxx 0.50 $ 12,500 10,000.00
86 Xxxxxxx Xxxxxxxx & Xxxxx X. Xxxxxxxx 0.25 $ 6,250 5,000.00
87 Xxxxxxx X. Xxxxxxx 0.25 $ 6,250 5,000.00
88 Xxxxxx Xxxxxxx Xxxxx 2.00 $ 50,000 40,000.00
89 Xxxxx X. Xxxxxx 2.00 $ 50,000 40,000.00
90 Xxxx X. Xxxxxxx 0.50 $ 12,500 10,000.00
91 Xxxxx X. Xxxxxxx 0.50 $ 12,500 10,000.00
92 C. Xxxxx Xxxxxx & Xxxxxx Xxxxxxx Xxxxxx 4.00 $ 100,000 80,000.00
93 Xxxxxxx X. Xxxxxxxx, Ttee/FBO Xxxxxxxx Corporation/Defined 2.00 $ 50,000 40,000.00
Benefit Pension Plan
94 Chuchi X. Xxxxx, Ttee/The Batangas Trust 0.50 $ 12,500 10,000.00
95 Xxxx X. Xxxxxxxx & Xxxxxxxx X. Xxxxxxxx, Ttee/The Xxxx X. 0.25 $ 6,250 5,000.00
Xxxxxxxx Trust
96 Xxx X. Xxxxxxxxx 1.00 $ 25,000 20,000.00
Page 13
97 Xxxxxx X. Xxxxx 2.00 $ 50,000 40,000.00
98 Xxxxxxx X. Xxxxxxx 0.50 $ 12,500 10,000.00
99 Xxxx X. Xxxxxxx 0.50 $ 12,500 10,000.00
100 Xxxxxxx X. Xxxx 1.00 $ 25,000 20,000.00
101 Xxxx Xxxxxxxxxx 0.50 $ 12,500 10,000.00
102 Xxxxxxx X. Xxxx 1.00 $ 25,000 20,000.00
103 Xxxxx X. Xxxxxxx, Xx. 1.00 $ 25,000 20,000.00
104 Xxxx Xxxxxxxxxxx & Xxxxx Xxxxxxxxxxx 1.00 $ 25,000 20,000.00
105 Xxxxxxx X. Xxxxxxxx DDS PC/Profit Sharing Plan 2.00 $ 50,000 40,000.00
106 Xxxxxx X. Xxxx 2.00 $ 50,000 40,000.00
107 Xxxxxxxxx X. XxXxxxxx 1.00 $ 25,000 20,000.00
108 First Mortgage Income Trust 1.00 $ 25,000 20,000.00
109 Xxxx Xxxxxxx 0.50 $ 12,500 10,000.00
110 Xxxxxxx Cable 1.00 $ 25,000 20,000.00
111 Xxxxx X. Xxxxx 1.00 $ 25,000 20,000.00
112 Xxxx X. Xxxx, DDS 0.50 $ 12,500 10,000.00
113 Xxxxxxx Xxxxx & Xxxxx Xxxxx 0.50 $ 12,500 10,000.00
114 Xxxxxxxxx X. XxXxxxxx XXX 1.50 $ 37,500 30,000.00
115 Xxxxxxx X. Xxxxxx 4.00 $ 100,000 80,000.00
116 Xxxxx X. Xxxxxxxxx 0.50 $ 12,500 10,000.00
117 Xxxxx X. XxXxxx 1.00 $ 25,000 20,000.00
118 Xxxxx X. Xxxxxxxx 1.00 $ 25,000 20,000.00
119 Xxxxx Xxxxxxx 2.00 $ 50,000 40,000.00
120 Xxxxxxx X. Xxxxxxx 0.25 $ 6,250 5,000.00
000 Xxxxxx Xxxxxxxx 4.00 $ 100,000 80,000.00
122 The Bank of Grays Harbor/Deferred Compensation Plan 3.00 $ 75,000 60,000.00
123 Xxx X. Xxxxxx 1.00 $ 25,000 20,000.00
124 Xxxx XxXxxxx 1.00 $ 25,000 20,000.00
125 Xxxxxxx X. Xxxxxxxx 0.75 $ 18,750 15,000.00
126 Xxxx X. Xxxxxxx 1.00 $ 25,000 20,000.00
127 Xxxxxxxxxxx X. Xxxxxxxx 1.00 $ 25,000 20,000.00
128 IHC, Inc. 0.50 $ 12,500 10,000.00
129 Xxxxx X. Xxxxxx & Xxxxxx X. Xxxxxx 2.00 $ 50,000 40,000.00
130 Xxxxx X. Xxxxxxxxxxxxxx 1.00 $ 25,000 20,000.00
131 Dr. Xxxxxx Xxxxx 0.50 $ 12,500 10,000.00
==========================================
TOTAL 108.75 $2,718,750 2,175,000.00
4TH CLOSING (JANUARY 6, 1999)
132 Xxxx X. Xxxxxx 1.50 $ 37,500 30,000.00
000 Xxxx Xxxxxxxxxxx 1.00 $ 25,000 20,000.00
==========================================
TOTAL 2.50 $ 62,500 50,000.00
5TH CLOSING (JANUARY 29,1999)
134 Arctic Striping, Inc. 1.00 $ 25,000 20,000.00
135 Xxxx X. Xxxxx 1.00 $ 25,000 20,000.00
136 Xxxxx X. & Xxxxx Xxxxxxxxx 1.00 $ 25,000 20,000.00
137 Xxxxxxx X. Xxxxxxxx 0.50 $ 12,500 10,000.00
138 Xxxxx Xxxxx Xxxxx & Xxxxxx Xxxxxx Xxxxxxxxx 2.00 $ 50,000 40,000.00
139 Xxxxxx X. Xxxxxx 1.00 $ 25,000 20,000.00
140 Xxxxxxxxxx Xxxxxx, Ttee 1.00 $ 25,000 20,000.00
141 Xxxxxxx Xxxxx 0.50 $ 12,500 10,000.00
142 Xxx Xxxxxxxx Family LLC 1.00 $ 25,000 20,000.00
143 Xxxxxx & Xxxx Xxxxxxx 1.50 $ 37,500 30,000.00
144 B & G Properties 0.50 $ 12,500 10,000.00
145 Xxxxxxx X. Xxxxxx 1.00 $ 25,000 20,000.00
146 Xxxxxx X. XxXxxxxxx 1.00 $ 25,000 20,000.00
147 Xxxxx X. Xxxxxxx 1.00 $ 25,000 20,000.00
148 Gene & Xxxxx Xxxxx 1.00 $ 25,000 20,000.00
Page 14
149 Xxxxx X. & Xxxx-Xxx Xxxxxxx & 0.75 $ 18,750 15,000.00
150 First Mortgage Income Trust 1.00 $ 25,000 20,000.00
151 Xxxx X. Xxxxxxx 0.50 $ 12,500 10,000.00
152 Xxxxx Xxxxxxxx 0.50 $ 12,500 10,000.00
153 Xxxxxxxx X.& Xxxxxx Xxxxxx 0.75 $ 18,750 15,000.00
154 Xxxxx Xxxxxx Mart 1.50 $ 37,500 30,000.00
155 Xxxx X.& Xxxxxx Xxxx & 1.00 $ 25,000 20,000.00
156 Xxxxxxx Xxxxx 2.00 $ 50,000 40,000.00
000 Xxxxx X. Xxxxxx 0.50 $ 12,500 10,000.00
158 Xxxx Xxxxxxx 0.50 $ 12,500 10,000.00
159 X. Xxxxx & Xxxxx X Xxxxxxx 1.00 $ 25,000 20,000.00
160 Xxxx X. & Xxxxx Xxxxxxxx 0.50 $ 12,500 10,000.00
161 Xxxxxx X. Xxxxx 8.00 $ 200,000 160,000.00
162 Xxxx Xxxxxxxxxx 0.50 $ 12,500 10,000.00
163 W. Xxxxxx Xxxxx 0.25 $ 6,250 5,000.00
164 Xxxxxxx X. & Xxxx Xxxxxx 0.50 $ 12,500 10,000.00
165 Hal Xxxxxx Xxxxx 1.00 $ 25,000 20,000.00
166 Xxxxxxx X. Xxxxxx 0.50 $ 12,500 10,000.00
167 Xxxxxx X. & Xxxxx X. Xxxxxx 1.00 $ 25,000 20,000.00
168 D. Xxxxx Xxxxxxx 1.00 $ 25,000 20,000.00
169 Xxxxxx X. & Xxxx X. Xxxxxx, Ttees 1.00 $ 25,000 20,000.00
170 Xxxx X. Xxxxx 1.00 $ 25,000 20,000.00
171 Xxxx X. Xxxx 0.75 $ 18,750 15,000.00
172 Xxxx & Xxxxxxxx X. Xxxxxxxx, Ttees 0.25 $ 6,250 5,000.00
173 Xxxx X. Xxxx 1.00 $ 25,000 20,000.00
174 Xxxxxxx X. Xxxx 1.00 $ 25,000 20,000.00
175 Xxxx Xxxxxxxx 1.00 $ 25,000 20,000.00
176 Xxxxx X. & Xxxxx X. Xxxxxxx 1.00 $ 25,000 20,000.00
177 Xxxxx X. Xxxxx 0.50 $ 12,500 10,000.00
178 Xxxx X. Dance 0.50 $ 12,500 10,000.00
179 Xxxxxxx Xxxxxx 1.00 $ 25,000 20,000.00
180 Western Construction, Inc. 1.00 $ 25,000 20,000.00
181 Xxxxxxx Xxxxxx 2.00 $ 50,000 40,000.00
182 I. Xxxxxx Xxxxx, Ttee 0.50 $ 12,500 10,000.00
183 Xxxx X. Xxxxx 1.00 $ 25,000 20,000.00
184 Xxxxxx X. Xxxxxxx 0.50 $ 12,500 10,000.00
185 Xxxx X. Xxxxx, Xx. 1.00 $ 25,000 20,000.00
186 Xxxxxxx X. Xxxxxx 0.50 $ 12,500 10,000.00
187 Xxxxxx X. Xxxxx 0.50 $ 12,500 10,000.00
188 Xxxxxxx X. Xxxxxx 0.50 $ 12,500 10,000.00
189 Bayside - Harbor Properties 1.00 $ 25,000 20,000.00
190 Xxxxxxxxx X. Xxxxxx 0.50 $ 12,500 10,000.00
191 Xxxxxxx X. Xxxxxx 0.50 $ 12,500 10,000.00
192 Xxxx X. Xxxxx 1.00 $ 25,000 20,000.00
193 C. Wayne & Xxxxxx Xxxxxxx Xxxxxx 1.00 $ 25,000 20,000.00
194 Xxxx X. Xxxxx 1.00 $ 25,000 20,000.00
195 Xxxxxxx X. & Xxxxxx X. Xxxxxxx 2.00 $ 50,000 40,000.00
196 Xxxxx X. Xxxxxxx 0.50 $ 12,500 10,000.00
197 Xxxxxxx X. Xxxxxxx 0.25 $ 6,250 5,000.00
198 Xxx Xxxxxxx 1.00 $ 25,000 20,000.00
199 Xxxxxxx Xxxxxxxx 1.50 $ 37,500 30,000.00
200 Xxxxxxx X. Xxxxxxxx 0.50 $ 12,500 10,000.00
201 Xxxxxx X. & Xxxx X. Xxxxxx 1.00 $ 25,000 20,000.00
202 X.X. Xxxxx, Ttee 0.75 $ 18,750 15,000.00
203 Western Airlines LC 2.00 $ 50,000 40,000.00
204 Xxxxxxx & Xxxxx Xxxxx 0.25 $ 6,250 5,000.00
205 Xxxx X. XxXxxxx D.O. 0.25 $ 6,250 5,000.00
206 Xxxxxx X. Xxxxxxxxxx 0.50 $ 12,500 10,000.00
Page 15
207 Chuchi X. Xxxxx, Ttee 0.50 $ 12,500 10,000.00
208 Xxxxxxxx Xxxxxx Xxxxxxxx 0.50 $ 12,500 10,000.00
209 Xpress Information & Technology, Inc. 1.25 $ 31,250 25,000.00
----------------------------------
Total 72.50 $1,812,500 1,450,000.00
============
GRAND TOTAL PREFERRED STOCK 232.50 $5,812,500 4,650,000.00
==================================
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