EXHIBIT 2.4
IMPORTANT: PLEASE READ CAREFULLY BEFORE SIGNING
SIGNIFICANT REPRESENTATIONS ARE
CALLED FOR HEREIN
SUBSCRIPTION AGREEMENT
AND
LETTER OF INVESTMENT INTENT
Xxxxxx and Xxxxx Xxxxxx Xxxxxx, Xxxxxxx & Xxxxx, Incorporated
Global One Distribution & Merchandising, 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Inc. Xxxxxxxxxxx, XX 00000
0000 Xxxxxxxxx Xxxx
Xxxx, XX 00000
Gentlemen:
The undersigned investor ("Investor") hereby tenders this subscription
and applies for the purchase of ______________ shares of common stock, $.01
par value (the "Shares") of Global One Distribution & Merchandising Inc., a
Delaware corporation (the "Company") from Xxxxxx and Xxxxx Xxxxxx
(collectively, "Angard"). The subscription price for each Share is $.52.5.
The aggregate subscription price, in the amount of $__________, is delivered
herewith. By execution below, the undersigned acknowledges that the Company,
Angard and Xxxxxx, Xxxxxxx & Xxxxx, Incorporated, as selling agent ("MJK")
are relying upon the accuracy and completeness of the representations
contained herein in complying with their obligations under applicable
securities laws.
1. The undersigned acknowledges and represents as follows:
(a) That the undersigned is a current shareholder of the Company
and has received, carefully reviewed and is familiar with the
Company's Annual Report on Form 10-K for the year ended
December 31, 1996, its draft Quarterly Report on Form 10-Q for
its quarter ended June 30, 1997 and the information entitled
"Recent Developments" dated August 11, 1997;
(b) That the undersigned is in a financial position to hold the
Shares for an indefinite period of time and is able to
withstand a complete loss of its investment in the Shares;
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(c) That the undersigned has substantial experience in evaluating
and investing in private placement transactions of securities
in companies similar to the Company, so that it is capable of
evaluating the merits and risks of its investment in the Company
and has the capacity to protect its own interests;
(d) That the undersigned is purchasing for its own account, for
investment, without a view to distribution;
(e) That the undersigned acknowledges that the undersigned is a
current shareholder of the Company and has made its own
investigation of the Company, its business, personnel and
prospects; has had an opportunity to discuss the Company's
business, management and financial affairs with directors,
officers and management of the Company;
(f) That the undersigned has such knowledge and experience in
financial and business matters that it is capable of evaluating
the merits and risks of the prospective investment in the Shares
and has the net worth to undertake such risks;
(g) That the undersigned believes that the investment in the Shares
is suitable for it based upon its investment objectives and
financial needs, and the undersigned has adequate means for
providing for its current financial needs and contingencies
and has no need for liquidity of investment with respect to
the Shares;
(h) That the undersigned recognizes that the Shares as an investment
involve a high degree of risk including, but not limited to,
the risk of economic losses from operations of the Company and
the total loss of its investment;
(i) That the undersigned realizes that (1) the Shares are being
purchased in a private sale, and that the shares are restricted
securities, (2) the purchaser of the Shares must bear the
economic risk of investment for an indefinite period of time
because the Shares have not been registered under the Securities
Act of 1933 (the "Act") and, therefore, cannot be sold unless
they are subsequently registered under the said Act or an
exemption from such registration is available and (3)
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the transferability of the Shares is restricted and (A) requires
conformity with the restrictions contained in paragraph 2 below,
and (B) will be further restricted by a legend placed on the
certificate(s) representing the Shares stating that they have
not been registered under the Act and referencing the
restrictions on transferability; and
(j) That the undersigned is not relying on any representations,
warranties or information provided by MJK and the undersigned
acknowledges and understands that a commission will be paid
to MJK by the undersigned and by Angard in this transaction.
2. The undersigned has been advised that the Shares are not being
registered under the Act or relevant state securities laws but are being
offered and sold pursuant to exemptions from such laws and that reliance upon
such exemptions by Angard, the Company and MJK is predicated in part on the
undersigned's representations as contained herein. The undersigned
represents and warrants that the Shares are being purchased for its own
account and for investment and without the intention of reselling or
redistributing the same, that it has made no agreement with others regarding
any of such Shares and that its financial condition is such that it is not
likely that it will be necessary to dispose of any of the Shares in the
foreseeable future. The undersigned is aware that, in the view of the
Securities and Exchange Commission, a purchase of securities with an intent
to resell any of the same by reason of any foreseeable specific contingency
or anticipated change in market value, or any change in the condition of the
Company, or in connection with a contemplated liquidation or settlement of
any loan obtained for the acquisition of the securities and for which the
securities were pledged as security, would represent an intent inconsistent
with the representations set forth above. The undersigned further represents
and agrees that if, contrary to its foregoing intentions, it should later
desire to dispose of or transfer any of the Shares in any manner, it shall
not do so without first obtaining (1) the opinion of counsel reasonably
acceptable to the Company that such proposed disposition or transfer lawfully
may be made without the registration of such Securities pursuant to the Act,
as then amended, and applicable state securities laws, or (2) such
registration.
3. The undersigned represents and warrants that, if an individual, it is a
bona fide resident of, and is domiciled in, the State of ______________, and,
if an entity, that its executive offices are located in the State of
______________, and that the Shares are being purchased by it in its name
solely for its own beneficial interest and not as nominee for, or on behalf
of, or for the beneficial interest of, or with the intention to transfer to,
any other person, trust or organization.
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The undersigned agrees to furnish any additional information which the
Company deems necessary in order to verify the answers set forth below.
4. The undersigned understands that the representations contained below are
made for the purpose of qualifying it as an "accredited investor" as that
term is defined in Regulation D of the General Rules and Regulations under
the Act and for the purpose of inducing a sale of securities to it. The
undersigned hereby represents that the statement or statements initialed
below are true and correct in all respects. The undersigned understands that
a false representation may constitute a violation of law, and that any person
who suffers damage as a result of a false representation may have a claim
against the undersigned for damages.
(a) Accredited INDIVIDUAL investors must initial one or both of the
following statements:
_____ (1) I certify that I am an accredited investor because I
had individual income (exclusive of any income
attributable to my spouse) of more than $200,000 in each
of the most recent two years or joint income with my
spouse of more than $300,000 in each of such years and I
reasonably expect to have such an income in excess of
such amounts for the current year.
_____ (2) I certify that I am an accredited investor because I
have an individual net worth, or my spouse and I have a
combined individual net worth, in excess of one million
dollars. For purposes of this Subscription Agreement
"individual net worth" means the excess of total assets
at fair market value, including home and personal
property, over total liabilities.
(b) Accredited PARTNERSHIPS, CORPORATIONS or OTHER ENTITIES must
initial one or more of the following statements:
_____ (1) The undersigned hereby certifies that all of the
beneficial equity owners of the undersigned qualify as
accredited individual investors under items 1 or 2 above.
(Investors attempting to qualify under this item must
complete the Certificate of Signatory to this
Subscription Agreement and Letter of Investment Intent
and each equity owner must complete a separate copy of
this Agreement and Letter);
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_____ (2) The undersigned is a bank or savings and loan
association as defined in Sections 3(a)(2) and
3(a)(5)(A), respectively, of the Act acting either in its
individual or fiduciary capacity.
_____ (3) The undersigned is an insurance company as defined
in Section 2(13) of the Act.
_____ (4) The undersigned is 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.
_____ (5) The undersigned is 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.
_____ (6) The undersigned is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974 AND either (check one or more, as
applicable):
_____ (a) 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 adviser; or
_____ (b) the employee benefit plan has total assets
in excess of $5,000,000; or
_____ (c) the plan is a self-directed plan with
investment decisions made solely by persons who are
"Accredited Investors" as defined under the Act.
_____ (7) The undersigned is a private business development
company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
_____ (8) The undersigned has total assets in excess of
$5,000,000, was not formed for the specific purpose of
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acquiring Shares AND is one or more of the following
(check one or more, as appropriate):
_____ (a) an organization described in Section 501(c)(3)
of the Internal Revenue Code; or
_____ (b) a corporation; or
_____ (c) a Massachusetts or similar business trust; or
_____ (d) a partnership.
_____ (9) The undersigned is a trust with total assets
exceeding $5,000,000, which was not formed for the
specific purpose of acquiring Shares and whose purchase
is directed by a person who has such knowledge and
experience in financial and business matters that he or
she is capable of evaluating the merits and risks of the
investment in the Shares.
5. The undersigned, if other than an individual, makes the following
additional representation:
(a) this Agreement has been duly authorized by all necessary action
on the part of the undersigned, has been duly executed by an
authorized officer or representative of the undersigned, and is a
legal, valid and binding obligation of the undersigned enforceable
in accordance with its terms.
6. REGISTRATION RIGHTS. The Company hereby grants the Investor the
registration rights covering the Shares set forth in Exhibit A attached hereto.
7. MANNER IN WHICH TITLE IS TO BE HELD. (check one)
(a) _____ Individual Ownership
(b) _____ Community Property
(c) _____ Joint Tenant with Right of Survivorship
(both parties must sign)
(d) _____ Partnership
(e) _____ Tenants in Common
(f) _____ Corporation
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(g) _____ Trust
(h) _____ Other
* * * * * * * *
Dated: ________________, 1997
INDIVIDUAL INVESTORS ENTITY INVESTORS
Name(s) Typed or Printed: Name Typed or Printed:
______________________________ ______________________________
Address to Which Correspondence Should
______________________________ be Directed
Signature (All record holders
should sign) ______________________________
______________________________
Address to Which Correspondence Should
be Directed City, State and Zip Code
______________________________ ______________________________
______________________________ Tax Identification or Social Security
Number:
City, State and Zip Code
______________________________
______________________________
Tax Identification or Social Security
Number:
______________________________
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GRANT OF REGISTRATION RIGHTS
The Company hereby grants the Investors registration rights with respect
to the Shares as are set forth in Exhibit A attached hereto.
GLOBAL ONE DISTRIBUTION & MERCHANDISING INC.
By____________________________________________
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CERTIFICATE OF SIGNATORY
(*To be completed if Shares are being subscribed
for by an entity)
I, ____________________________________, the _______________
__________________ of ___________________________________________ (the
"Entity"), hereby certify that I am empowered and duly authorized by the
Entity to execute and carry out the terms of the Subscription Agreement and
Letter of Investment Intent and to purchase the Shares, and certify further
that the Subscription Agreement and Letter of Investment Intent has been duly
and validly executed on behalf of the Entity and constitutes a legal and
binding obligation of the Entity.
IN WITNESS WHEREOF, I have set my hand this ____ day of ______________,
1997.
___________________________________
Signature
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EXHIBIT A
GRANT OF REGISTRATION RIGHTS
1. DEMAND REGISTRATION.
On one occasion only, upon request by the holders of 50% or more of the
Shares, the Company will promptly take all necessary steps, at the option of
such holders, to register or qualify the sale of such Shares by the holders
thereof under the Securities Act of 1933 (and, upon the request of such
holders, under Rule 415 thereunder) and such state laws as such holders may
reasonably request; provided that such request must be made after December
31, 1997.
2. REGISTRATION - GENERAL PROVISIONS.
(a) Whenever the Company is required to effect the registration of
Shares under the Act, the Company will:
(i) Prepare and file with the Commission a registration
statement with respect to such securities, and use its best efforts
to cause such registration statement to become and remain effective
for three (3) years, until all Shares have been sold or all Shares
are eligible for resale under Rule 144 of the Act without any
restriction on the number of Shares which may be sold whichever is
shorter;
(ii) prepare and file with the Commission such amendments to
such registration statement and supplements to the prospectus
contained therein as may be necessary to keep such registration
statement effective for the period required by Section 2(a)(i)
above;
(iii) provide Investors' counsel with reasonable
opportunities to review and comment on, and otherwise participate
in, the preparation of such registration statement;
(iv) furnish to the Investors participating in such
registration and to the underwriters of the securities being
registered such reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus and such other
documents as the Investors and underwriters may reasonably request
in order to facilitate the public offering of such securities;
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(v) use its best efforts to register or qualify the
securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as any such
Investor may reasonably request, except that the Company shall not
for any purpose be required to execute a general consent to service
of process (which shall not include a "Uniform Consent to Service
of Process" or other similar consent to service of process which
relates only to actions or proceedings arising out of or in
connection with the sale of securities, or out of a violation of
the laws of the jurisdiction requesting such consent) or to qualify
to do business as a foreign corporation in any jurisdiction wherein
it is not so qualified;
(vi) notify the Investors, promptly after it shall receive
notice thereof, of the time when such registration statement has
become effective or a supplement to any prospectus forming a part
of such registration statement has been filed;
(vii) notify the Investors promptly of any request by the
Commission for the amending or supplementing of such registration
statement or prospectus or for additional information;
(viii) prepare and file with the Commission, promptly upon
the request of any Investor, any amendments or supplements to such
registration statement or prospectus which, in the opinion of
counsel for such Investor (and concurred in by counsel for the
Company), is required under the Act or the rules and regulations
thereunder in connection with the distribution of the Shares by
such Investor;
(ix) prepare and promptly file with the Commission and
promptly notify the Investors of the filing of such amendment or
supplement to such registration statement or prospectus as may be
necessary to correct any statements or omissions if, at the time
when a prospectus relating to such securities is required to be
delivered under the Act, any event shall have occurred as the
result of which any such prospectus or any other prospectus as then
in effect would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances in which they were made,
not misleading;
(x) advise the Investors, and the Investors' counsel, if any,
promptly after it shall receive notice or obtain knowledge thereof,
of the issuance of
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any stop order by the Commission suspending the effectiveness of
such registration statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal
if such stop order should be issued;
(xi) not file any amendment or supplement to such
registration statement or prospectus to which a majority in
interest of the Investors shall have reasonably objected on the
grounds that such amendment or supplement does not comply in all
material respects with the requirements of the Act or the rules and
regulations thereunder, after having been furnished with a copy
thereof at least five business days prior to the filing thereof,
unless in the opinion of counsel for the Company the filing of such
amendment or supplement is reasonably necessary to protect the
Company from any liabilities under any applicable federal or state
law and such filing will not violate applicable law; and
(xii) at the request of any such Investor, furnish on the
effective date of the registration statement and, if such
registration includes an underwritten public offering, at the
closing provided for in the underwriting agreement: (i) opinions,
dated such respective dates, of the counsel representing the
Company for the purposes of such registration, addressed to the
underwriters, if any, and to the Investor or Investors making such
request, covering such matters as such underwriters may reasonably
request; and (ii) letters, dated such respective dates, from the
independent certified public accountants of the Company, addressed
to the underwriters, if any, and to the Investor or Investors
making such request, covering such matters as such underwriters may
reasonably request, in which letter such accountants shall state
(without limiting the generality of the foregoing) that they are
independent certified public accountants within the meaning of the
Act and that in the opinion of such accountants the financial
statements and other financial data of the Company included in the
registration statement or the prospectus or any amendment or
supplement thereto comply in all material respects with the
applicable accounting requirements of the Act.
(b) The Company shall pay all Registration Expenses (as defined below)
in connection with the inclusion of Shares in any Registration Statement, or
application to register or qualify Shares under state securities laws, filed
by the Company hereunder, other than as set forth herein. For purposes of
this Agreement, the term "Registration Expenses" means the filing fees
payable to the SEC, any state agency and the National Association of
Securities Dealers, Inc.; the fees and expenses of the Company's legal
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counsel and independent certified public accountants in connection with the
preparation and filing of the Registration Statement (and all amendments and
supplements thereto) with the SEC; and all expenses relating to the printing
of the Registration Statement, prospectuses and various agreements executed
in connection with the Registration Statement. Notwithstanding the
foregoing, the Investor will pay the fees and expenses of any legal counsel
Investor may engage, as well as the Investor's proportionate share of any
custodian fees or commission, discounts or expense allowances which may be
payable to any underwriter.
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