MAGNETECH INDUSTRIAL SERVICES, INC. PLACEMENT AGENCY AGREEMENT
Exhibit
10.1
MAGNETECH
INDUSTRIAL SERVICES, INC.
PLACEMENT
AGENCY AGREEMENT
Strasbourger
Xxxxxxx Tulcin Xxxxx Incorporated
00
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
April
26,
2004
Ladies
and Gentlemen:
This
Placement Agency Agreement (this “Agreement”)
confirms the retention by Magnetech Industrial Services, Inc., an Indiana
corporation (“MIS”
or the
“Company”), of Strasbourger Xxxxxxx Tulcin Xxxxx Incorporated, a New York
corporation (“Strasbourger”
or the
“Placement Agent”),
to
act as the sales agent, on a best efforts basis, in connection with the
Placements (as defined below) for MIS and its affiliates, on the terms set
forth
below.
MIS
has
sold solely to “accredited investors,” as such term is defined in Rule 501
promulgated under the Securities Act of 1933, as amended (the “1933
Act”),
750,000 shares of Series A Convertible Redeemable Preferred Stock (the “Series A
Stock”) at $1.00 per share, in a pre-bridge financing (the “Pre-Bridge”).
The
Pre-Bridge was made on a “best efforts” basis. All of the Series A Stock will
convert into shares of common stock in Magnetech Integrated Services Corp.
(“Newco,” a newly formed parent entity of the Company), upon the completion of
the Private Placement Offering (the “PPO”).
It
is
currently anticipated that within 365 days of the Pre-Bridge, Newco proposes
to
offer for sale in the PPO, solely to “accredited investors”, up to 11,250,000
shares of common stock in Newco (the “PPO Shares”), to raise gross proceeds,
before fees and expenses, of $2,250,000. The PPO share offering will be made
on
a “best efforts” basis and will be offered in accordance with Section 4(2) of
the Securities Act of 1933, as amended (the “1933
Act”)
and
Regulation D promulgated thereunder.
The
Pre-Bridge and the PPO are collectively referred to herein as the “Placements.”
The
Private Placement Memorandum to be used in connection with the PPO (the
“Memorandum”),
as it
may be amended or supplemented from time to time, and the form of proposed
stock
purchase agreement (the “Stock
Purchase Agreement”)
between the Company and each subscriber for the Placements (the “Subscribers”)
and
the exhibits which are part of the Memorandum and/or Stock Purchase Agreement
are collectively referred to herein as the “Offering
Documents.”
The
Offering Documents, together with (i) this Agreement, (ii) the Fund Escrow
Agreements (as defined in Section 3(b)(xii) hereof), (iii) the Agent’s Warrants
(as defined in Section 3(d) hereof), (iv) the Finder’s Agreement (as defined in
Section 3(b)(ix) hereof) and (v) any exhibits, schedules and appendices which
are part of the Offering Documents, and the Agency Agreement are collectively
referred to herein as the “Transaction
Documents.”
The
shares of common stock of Newco issuable upon conversion of the Series A
Stock
are referred to herein as the
“Underlying
Shares.”
The
Series A Stock, the PPO Shares, the Agent’s Warrants, the Agent’s Shares (as
defined in Section 3(d) hereof) and the Underlying Shares are collectively
referred to herein as the “Securities.”
The
Company will deliver to Strasbourger a reasonable number of copies of the
Transaction Documents in form and substance satisfactory to Strasbourger
and its
counsel.
Each
Subscriber will be required to deliver, among other things, a Stock Purchase
Agreement and a Confidential Investor Questionnaire (the “Questionnaire”)
in the
form to be provided to offerees. An example of the Questionnaire is attached
as
Exhibit A.
1. Appointment
of Placement Agent.
(a) Strasbourger
is hereby appointed or ratified, as the case may be, as exclusive placement
agent of the Company (subject to Strasbourger’s right to have selected dealers
(“Selected
Dealers”)
in
good standing with the National Association of Securities Dealers (“NASD”)
participate in the Placements) during the respective offering periods for
the
Placements herein specified for the purposes of assisting the Company in
finding
qualified Subscribers. The offering period for the Pre-Bridge (the “Pre-Bridge
Offering Period”)
ended on February 26, 2004.
The day
that the Pre-Bridge Offering Period terminated is hereinafter referred to
as the
“Pre-Bridge
Termination Date.”
The
offering period for the PPO (the “PPO
Period”)
shall
commence on the day the Offering Documents are first made available to the
Placement Agent by the Company for delivery in connection with the PPO (the
“Delivery
Date”)
and
shall continue until the earlier to occur of: (i) the sale of all of the
PPO
Shares; or (ii) 90 days following the Delivery Date. The day that the PPO
Period
terminates is hereinafter referred to as the “PPO
Termination Date.”
The
PPO Termination Date may be extended for up to 45 days at the option of the
Placement Agent and Newco.
(b) Subject
to the performance by Newco and the Company of all of its obligations to
be
performed under this Agreement and to the completeness and accuracy of all
representations and warranties of Newco and the Company contained in this
Agreement, the Placement Agent hereby accepts such agency and agrees to use
its
best efforts to assist Newco and the Company in finding qualified Subscribers.
It is understood that the Placement Agent has no commitment to sell the Series
A
Stock or the PPO Shares. Strasbourger’s agency hereunder is not terminable by
the Company except upon termination of the PPO Offering Period.
(c) Subscriptions
for Shares of Series A Stock and the PPO Shares shall be evidenced by the
execution by Subscribers of a Stock Purchase Agreement. No Stock Purchase
Agreement shall be effective unless and until it is accepted and countersigned
by Newco or the Company. The Placement Agent shall not have any obligation
to
independently verify the accuracy or completeness of any information contained
in any Stock Purchase Agreement or the authenticity, sufficiency, or validity
of
any check delivered by any prospective Subscriber in payment for Series A
Stock
or PPO Shares.
(d) The
Placement Agent and/or its affiliates may be Subscribers in the
Placements.
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2. Representations
and Warranties of the Company.
Except
as set forth in the Transaction Documents or in the Disclosure Schedule attached
hereto, the Company and Newco represent and warrant to the Placement Agent
and
each Selected Dealer, if any, as follows:
(a) Securities
Law Compliance.
The
offer, offer for sale, and sale of the Securities have not been registered
with
the United States Securities and Exchange Commission (the “SEC”).
The
Securities are to be offered, offered for sale and sold in reliance upon
the
exemptions from the registration requirements of Section 5 of the 1933 Act.
The
Company and Newco will conduct the Placements in compliance with the
requirements of Regulation D of the General Rules and Regulations under the
1933
Act, and the Company and Newco will file all appropriate notices of offering
with the SEC. The Company and Newco have prepared the Offering Documents.
None
of the representations or warranties of the Company and Newco contained in
this
Agreement or any information appearing in any of the Transaction Documents
contains, or on or prior to any Closing will contain, any untrue statement
of a
material fact or omit to state any material fact necessary in order to make
the
statements therein, in light of the circumstances in which they were made,
not
misleading. If at any time prior to the completion of the Placements or other
termination of this Agreement any event shall occur as a result of which
it
might become necessary to amend or supplement the Offering Documents so that
they do not include any untrue statement of any material fact or omit to
state
any material fact necessary in order to make the statements therein, in the
light of the circumstances then existing, not misleading, the Company or
Newco
will promptly notify the Placement Agreement and will supply the Placement
Agreement with amendments or supplements correcting such statement or omission.
The Company or Newco will also provide the Placement Agent for delivery to
all
offerees and purchasers and their representatives, if any, any information,
documents and instruments which the Placement Agent deems reasonably necessary
to comply with applicable state and federal law.
(b) Organization.
The
Company and Newco are duly organized and validly existing under the laws
of the
jurisdiction in which it was organized, and have the requisite power and
authorization to own their properties and to carry on their business as now
being conducted. The Company and Newco are duly qualified as a foreign
corporation to do business and is in good standing in every jurisdiction
in
which their ownership of property or the nature of the business conducted
by
them makes such qualification necessary, except to the extent that the failure
to be so qualified or be in good standing would not have a Material Adverse
Effect. As used in this Agreement, “Material
Adverse Effect”
means
any event or change in circumstance, whether or not directly or indirectly
caused by management or arising independently of management’s control, that has
or could reasonably be deemed by the Placement Agent to have in the future,
a
material adverse effect on the business, properties, assets, operations,
results
of operations, financial condition or prospects of the Company or Newco or
on
the transactions contemplated hereby, or on the other Transaction Documents
or
the agreements and instruments to be entered into in connection herewith
or
therewith, or on the authority or ability of the Company or Newco to perform
its
obligations under the Transaction Documents. At the time of the PPO, Newco
will
own 100% of MIS. MIS in turn will own 100% of Xxxxxxx Electric LLC, MIS’s only
subsidiary.
(c) Capitalization.
As of
the date hereof, the authorized, issued and outstanding capital stock of
the
Newco and the Company will be as set forth on Schedule 2(c) attached hereto.
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Following
the completion of the PPO, all of such outstanding shares of Newco will be
duly
authorized and validly issued, and will be fully paid and non-assessable.
Except
as set forth on Schedule 2(c), (i) no shares of the Company’s or Newco’s capital
stock will be subject to preemptive rights or any other similar rights or
any
liens or encumbrances suffered or permitted by the Company or Newco; (ii)
there
will be no outstanding debt securities issued by the Company or Newco; (iii)
there will be no outstanding options, warrants, scrip, rights to subscribe
to,
calls or commitments of any character whatsoever relating to, or securities
or
rights convertible into or exchangeable for, any shares of capital stock
of the
Company or Newco, or contracts, commitments, understandings or arrangements
by
which the Company or Newco is or may become bound to issue additional shares
of
capital stock of the Company or Newco or options, warrants, scrip, rights
to
subscribe to, calls or commitments of any character whatsoever relating to,
or
securities or rights convertible into or exchangeable for, any shares of
capital
stock of the Company or Newco; (iv) there will be no outstanding securities
of
the Company or Newco which contain any redemption or similar provisions,
and
there will be no contracts, commitments, understandings or arrangements by
which
the Company or Newco will be or may become bound to redeem a security of
the
Company or Newco; and (v) the Company or Newco will not have any stock
appreciation rights or “phantom stock” plans or agreements or any similar plan
or agreement. All prior sales of securities of the Company or Newco will
be
either registered under the 1933 Act and applicable state securities laws
or
exempt from such registration, and no security holder will have any rescission
rights with respect thereto.
(d) Subsidiaries
and Investments.
Except
as set forth on Schedule 2(d), following the sale of the Series A Stock and
the
completion of the PPO, neither Newco nor the Company will have any subsidiaries
and neither the Company nor Newco will own, directly or indirectly, any capital
stock or other equity ownership or proprietary interests in any other
corporation, association, trust, partnership, joint venture or other entity.
(e) Financial
Statements.
The
Company’s financial statements attached hereto as Schedule 2(e) will fairly
present in all material respects the financial position of the Company as
of
December 31, 2003 and the results of its operations and cash flows for the
period then ended December 31, 2003 (subject to normal year-end adjustments
that
will not be material).
(f) Absence
of Changes.
Since
the date (the “Balance
Sheet Date”)
of the
most recent balance sheet provided to the Placement Agent (the “Balance
Sheet”)
and
except as set forth on Schedule 2(f) or Schedule 2(c), the Company has not
(i)
incurred any debts, obligations or liabilities, absolute, accrued, contingent
or
otherwise, whether due or to become due, except current liabilities incurred
in
the usual and ordinary course of business and consistent with past practices,
having individually or in the aggregate a Material Adverse Effect, (ii) made
or
suffered any material changes in its contingent obligations by way of guaranty,
endorsement (other than the endorsement of checks for deposit in the usual
and
ordinary course of business), indemnity, warranty or otherwise, (iii) discharged
or satisfied any material liens other than those securing, or paid any
obligation or liability other than, current liabilities shown on the Balance
Sheet, and current liabilities incurred since the Balance Sheet Date, in
each
case in the usual and ordinary course of business and consistent with past
practices, (iv) mortgaged, pledged or subjected to lien any of its material
assets, tangible or intangible, (v) sold, transferred or leased any of its
material assets except in the usual and ordinary course of business and
consistent with past practices, (vi)
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cancelled
or compromised any debt or claim, or waived or released any right, of material
value except in the usual and ordinary course of business and consistent
with
past practices, (vii) suffered any physical damage, destruction or loss (whether
or not covered by insurance) materially adversely affecting the properties
or
business of the Company, (viii) entered into any material transaction other
than
in the usual and ordinary course of business except for this Agreement, the
other Transaction Documents and the related agreements referred to herein
and
therein, (ix) encountered any material labor difficulties or labor union
organizing activities, (x) made or granted any wage or salary increase or
entered into any employment agreement other than in the ordinary course of
business, (xi) issued or sold any shares of capital stock or other securities
or
granted any options with respect thereto, or modified any equity security
of the
Company, (xii) declared or paid any dividends on or made any other distributions
with respect to, or purchased or redeemed, any of its outstanding equity
securities, (xiii) suffered or experienced any change in, or condition
affecting, its condition (financial or otherwise), properties, assets,
liabilities, business operations, or results of operations other than changes,
events or conditions in the usual and ordinary course of its business and
consistent with past practices, having (either by itself or in conjunction
with
all such other changes, events and conditions) a Material Adverse Effect,
(xiv)
made any change in the accounting principles, methods or practices followed
by
it or depreciation or amortization policies or rates theretofore adopted,
or
(xv) entered into any agreement, or otherwise obligated itself, to do any
of the
foregoing.
(g) Title.
Except
as set forth on Schedule 2(g), the Company and Newco have good and marketable
title to all properties and assets owned by them, free and clear of all liens,
charges, encumbrances or restrictions, except such as will not be significant
or
important in relation to the Company’s or Newco’s business; to the Company’s or
Newco’s knowledge, all of the material leases and subleases under which the
Company or Newco is the lessor or sublessor of properties or assets or under
which the Company or Newco holds properties or assets as lessee or sublessee
will be in full force and effect, and neither the Company nor Newco will
be in
default in any material respect with respect to any of the terms or provisions
of any of such leases or subleases, and no material claim will have been
asserted by anyone adverse to rights of the Company or Newco as lessor,
sublessor, lessee or sublessee under any of the leases or subleases mentioned
above, or affecting or questioning the right of the Company or Newco to
continued possession of the leased or subleased premises or assets under
any
such lease or sublease.
(h) Proprietary
Rights.
Except
as set forth on Schedule 2(h),the Company and Newco directly or indirectly
own
or possess exclusive and enforceable rights to use all patents, patent
applications, trademarks, service marks, copyrights, trade secrets, processes,
formulations, technology or know-how currently used in the conduct of their
businesses (the “Proprietary
Rights”).
Neither Newco nor the Company has received any notice of any claims, nor
do they
have any knowledge of any threatened claims, and know of no facts which would
form the basis of any claim, asserted by any person to the effect that the
sale
or use of any product or process now used or offered by the Company or Newco
or
proposed to be used or offered by the Company or Newco infringes on any patents
or infringes upon the use of any such Proprietary Rights of another person
and,
to the best of the Company’s or Newco’s knowledge, no others have infringed the
Company’s or Newco’s Proprietary Rights.
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(i) Litigation.
There
is no material action, suit, investigation, customer complaint, claim or
proceeding at law or in equity by or before any arbitrator, court, governmental
instrumentality or agency, self-regulatory organization or body or public
board
now pending or, to the knowledge of Newco or the Company, threatened against
Newco or the Company of any of the officers or directors of the Company or
Newco
in their capacities as such (or basis therefor known to the Company or Newco),
the adverse outcome of which would have a Material Adverse Effect. To their
knowledge, the Company and Newco are not subject to any judgment, order,
writ,
injunction or decree of any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic
or
foreign which have a Material Adverse Effect.
(j) Non-Defaults;
Non-Contravention.
Neither
the Company nor Newco is in violation of or default under, nor will the
execution and delivery of this Agreement or any of the Transaction Documents
or
consummation of the transactions contemplated herein or therein result in
a
violation of or constitute a default in the performance or observance of
any
obligation under: (i) its Articles of Incorporation, or its By-laws; or (ii)
any
indenture, mortgage, contract, material purchase order or other agreement
or
instrument to which the Company or Newco is a party or by which it or its
property is bound, where such violation or default would have a Material
Adverse
Effect; or (iii) any material order, writ, injunction or decree of any court
of
any Federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, where such
violation or default would have a Material Adverse Effect, and to the Company’s
and Newco’s knowledge, there exists no condition, event or act which
constitutes, nor which after notice, the lapse of time or both, could constitute
a default under any of the foregoing, which in either case would have a Material
Adverse Effect.
(k) Taxes.
The
Company and Newco have filed all Federal, state, local and foreign tax returns
which are required to be filed by it or otherwise met its disclosure obligations
to the relevant agencies and all such returns are true and correct in all
material respects. The Company and Newco have paid or adequately provided
for
all tax liabilities of the Company and Newco as reflected on such returns
or
pursuant to any assessments received by it or which it is obligated to withhold
from amounts owing to any employee, creditor or third party. The tax returns
of
the Company and Newco have never been audited by any state, local or Federal
authorities. The Company and Newco have not waived any statute of limitations
with respect to taxes or agreed to any extension of time with respect to
any tax
assessment or deficiency.
(l) Compliance
With Laws; Licenses, Etc.
The
Company and Newco have not received notice of any violation of or noncompliance
with any Federal, state, local or foreign, laws, ordinances, regulations
and
orders applicable to its business which has not been cured, the violation
of, or
noncompliance with which, would have a Material Adverse Effect. To its
knowledge, the Company and Newco have all material licenses and permits and
other governmental certificates, authorizations and permits and approvals
(collectively, “Licenses”)
required by every Federal, state and local government or regulatory body
for the
operation of its business as currently conducted and the use of its properties,
except where the failure to be licensed or possess a permit would not have
a
Material Adverse Effect. The Licenses are in full force and effect and to
the
Company’s and Newco’s knowledge no violations currently exist in respect of any
License and no proceeding is pending or threatened to revoke or limit any
thereof.
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(m) Authorization
of Agreement, Etc.
The
Company and Newco have the requisite corporate power and authority to enter
into
and perform their obligations under this Agreement and the other Transaction
Documents. The execution and delivery of the Transaction Documents by the
Company and Newco and the consummation by the Company and Newco of the
transactions contemplated by the Transaction Documents, including without
limitation the issuance of the Securities, have been duly authorized by the
Company’s and Newco’s Board of Directors (the “Boards”)
and no
further consent or authorization is required by the Company, Newco, the Boards
or the Company’s or Newco’s stockholders. The Transaction Documents, when
executed, will have been duly executed and delivered by the Company and Newco,
and will constitute valid and binding obligations of the Company and Newco
enforceable against the Company and Newco in accordance with their terms,
except
as such enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or
similar laws relating to, or affecting generally, the enforcement of creditors’
rights and remedies.
(n) Authorization
of Series A Stock, PPO Shares, Warrants Etc.
The
issuance, sale and delivery of the Series A Stock, the PPO Shares and the
Agent’s Warrants and the Agent’s Shares shall have been duly authorized by all
requisite corporate action of the Company and/or Newco. When so issued, sold
and
delivered in accordance with the Transaction Documents for the consideration
set
forth therein, the Series A Stock, the PPO Shares and the Agent’s Warrants and
the Agent’s Shares will be duly executed, issued and delivered and will
constitute valid and legal obligations of the Company and Newco as the case
may
be enforceable in accordance with their respective terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar
laws
relating to, or affecting generally, the enforcement of creditors’ rights and
remedies and, in each case, will not be subject to preemptive or any other
similar rights of the stockholders of the Company or Newco or others which
rights except as set forth herein or which shall not have been waived prior
to
the closing of the Pre-Bridge.
(o) Authorization
of Reserved Shares.
The
issuance, sale and delivery by the Company and Newco as the case may be of
the
Series A Stock, the PPO Shares, The Agent’s Shares and the shares of Common
Stock issuable upon exercise of the Agent’s Warrants (collectively the
“Reserved
Shares”)
have
been duly authorized by all requisite corporate action of the Company and
Newco
, and the Reserved Shares have been duly reserved for issuance upon exercise
of
all or any of the Agent’s Warrants and conversion of all or any of the Series A
Stock, and when so issued, sold, paid for and delivered for the consideration
set forth in the Transaction Documents, the Reserved Shares will be validly
issued and outstanding, fully paid and non-assessable, and except as set
forth
herein, shall not subject to preemptive or any other similar rights of the
stockholders of the Company or Newco or others which rights shall not have
been
waived prior to the closing of the Pre-Bridge.
(p) Exemption
from Registration.
Assuming (i) the accuracy of the information provided by the respective
Subscribers in the Offering Documents and (ii) that the Placement Agent has
complied in all material respects with this Agreement and the provisions
of
Regulation D promulgated under the 1933 Act, the offer and sale of the
Securities in the Placements pursuant to the terms of this Agreement will
be
exempt from the registration requirements of the 1933 Act
7
and
the
rules and regulations promulgated thereunder. Neither the Company nor Newco
is
disqualified from the exemption under Regulation D by virtue of any
disqualifications contained in Rule 505(b)(2)(iii) or Rule 507 promulgated
thereunder expressly applicable to the Company.
(q) Brokers.
Neither
the Company, Newco nor any of their officers, directors, employees or
stockholders has employed any broker or finder in connection with the
transactions contemplated by this Agreement other than the Placement Agent
and
Selected Dealers.
(r) Title
to Securities.
When
certificates representing the Series A Stock, the PPO Shares and the Agent’s
Warrants and the Agent’s Shares have been duly delivered to the Subscribers, or
to the Placement Agent, as the case may be, and payment shall have been made
therefor, the Subscribers shall receive good and marketable title to such
securities free and clear of all liens, encumbrances and claims whatsoever
(with
the exception of claims arising through the acts or omissions of the Subscribers
and except as arising from applicable Federal and state securities laws),
and
the Company and Newco shall have paid all transfer taxes, if any, in respect
of
the original issuance thereof.
(s) Consents.
Except
as contemplated by this Agreement or as required under Regulation D and
applicable Blue Sky laws, neither the Company nor Newco is required to obtain
any consent, authorization or order of, or make any filing or registration
with,
any court or governmental agency or any regulatory or self-regulatory agency
in
order for it to execute, deliver or perform any of its obligations under
or
contemplated by the Transaction Documents. Except as otherwise provided in
the
Transaction Documents, all consents, authorizations, orders, filings and
registrations which the Company or Newco are required to obtain pursuant
to the
preceding sentence have been obtained or effected, or will be obtained and
effected, on or prior to the closing of the Pre-Bridge. Neither the Company
nor
Newco is aware of any facts or circumstances that might prevent the Company
or
Newco from obtaining or effecting any of the foregoing.
(t) No
General Solicitation.
None of
the Company, Newco any of their affiliates, and any person acting on its
behalf,
has engaged in any form of general solicitation or general advertising (within
the meaning of Regulation D under the 0000 Xxx) in connection with the offer
or
sale of the Securities.
(u) No
Integrated Offering.
None of
the Company, Newco, any of their affiliates, and any person acting on its
behalf
has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that would
require
registration of any of the Securities under the 1933 Act or cause the Placements
to be integrated with prior offerings by the Company or Newco for purposes
of
the 1933 Act or any applicable stockholder approval provisions, including
without limitation, under the rules and regulations of any exchange or automated
quotation system on which any of the securities of the Company or Newco are
listed or designated. None of the Company, Newco, their affiliates and any
person acting on its behalf will take any action or steps referred to in
the
preceding sentence that would require registration of any of the Securities
under the 1933 Act or cause the Placements to be integrated with other
offerings.
8
(v) Application
of Takeover Protections; Rights Agreement.
The
Company and Newco and the Boards have taken all necessary action, if any,
in
order to render inapplicable any control share acquisition, business
combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Certificates of Incorporation
of the Company or Newco, or the laws of the state of their incorporation
which
is or could become applicable as a result of the transactions contemplated
by
this Agreement. Neither the Company nor Newco have adopted a shareholder
rights
plan or similar arrangement relating to accumulations of beneficial ownership
of
Common Stock or a change in control of the Company or Newco.
(w) Right
of First
Refusal.
Except
for the right of first refusal granted to the Placement Agent herein, no
person,
firm or other business entity is a party to any agreement, contract or
understanding, written or oral entitling such party to a right of first refusal
with respect to offerings by the Company or Newco.
(x) Foreign
Corrupt Practices.
Neither
the Company, Newco nor any director, officer, agent, employee or other person
acting on behalf of the Company or Newco has, in the course of its actions
for,
or on behalf of, the Company or Newco, (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expenses relating
to political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds,
(ii)
violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended, or (iii) made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to any foreign
or
domestic government official or employee.
3. Closing;
Placement and Fees.
(a) Closing
of the Placements.
(i) Pre-Bridge
Financing.
The
closing of the Pre-Bridge has taken place at the offices of Company At the
Pre-Bridge closing, payment for the Series A Stock issued and sold by the
Company was made against delivery of the Series A Shares
certificates.
(ii) PPO.
A
closing (the “Initial
Closing”)
shall
take place at the New York offices of Gottbetter & Partners, LLP, counsel
for the Placement Agent, within three business days after gross proceeds
of
$500,000 from the sale PPO Shares have been received by the Placement Agent
and
delivered to the escrow agent pursuant to the Fund Escrow Agreements (but
in no
event later than five days following the PPO Termination Date), which closing
date may be accelerated or adjourned by agreement between the Company and
the
Placement Agent. At the Initial Closing, payment for the PPO Shares issued
and
sold by the Company shall be made against delivery of the certificates for
the
PPO Shares sold. In addition, subsequent closings of the PPO (if applicable)
may
be scheduled at the discretion of the Company and Placement Agent, each of
which, together with the closing of the Pre-Bridge shall be referred to herein
as a “Closing.”
(b) Conditions
to Placement Agent’s Obligations.
The
obligations of the Placement Agent hereunder will be subject to the accuracy
of
the representations and warranties of the
9
Company
and Newco herein contained as of the date hereof and as of each closing date
of
the Placements, to the performance by the Company and Newco of their obligations
hereunder and to the following additional conditions:
(i) Due
Qualification or Exemption.
(A) The
Placements will become qualified or be exempt from qualification under the
securities or “blue sky” laws of the several states pursuant to Section 4(d)
below not later than the Pre-Bridge closing date, and (B) at each Closing
no
stop order suspending the sale of the Series A Stock or the PPO Shares shall
have been issued, and no proceedings by an governmental agency, self-regulatory
organization or any securities exchange for that purpose shall have been
initiated or threatened;
(ii) No
Material Misstatements.
Neither
the blue sky qualification materials nor the Offering Documents, nor any
supplement thereto, will contain any untrue statement of a fact which in
the
opinion of the Placement Agent is material, or omit to state a fact, which
in
the opinion of the Placement Agent is material and is required to be stated
therein, or is necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(iii) Compliance
with Agreements.
The
Company and Newco will have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior
to
each Closing;
(iv) Corporate
Action.
The
Company and Newco will have taken all necessary corporate action, including,
without limitation, obtaining the approval of the Boards, and, if necessary,
their stockholders, for the execution and delivery of this Agreement, the
performance by the Company and Newco of its obligations hereunder and the
Placements contemplated hereby;
(v) Opinion
of Counsel.
The
Placement Agent shall receive the (i) opinion of BT Law, counsel to the Company
and Newco, addressed to the Placement Agent and the Subscribers, in form
and
substance reasonably acceptable to the Placement Agent.
(vi) Officers’
Certificate.
The
Placement Agent shall receive a certificate of the Company and Newco, signed
by
the Chief Executive Officer and Chief Financial Officer thereof, that the
representations and warranties contained in Section 2 hereof are true and
accurate in all material respects as of the date hereof and at such Closing
with
the same effect as though expressly made at such Closing.
(vii) Stockholder
Consents.
The
Placement Agent shall have received copies of such duly executed waivers
and
consents from the holders of the Company’s and Newco’s outstanding securities as
counsel to the Placement Agent deems necessary or important for completion
of
the Placements
(viii) Due
Diligence.
The
Placement Agent shall have completed and been satisfied with the results
of its
due diligence investigation of the Company and Newco, including, without
limitation, the Company’s financial statements, projections, expense budgets,
business prospects, capital structure, background searches and contractual
arrangements.
10
(ix) Finder’s
Agreement.
The
Company and Newco shall execute and deliver to the Placement Agent an agreement
with the Placement Agent providing for a fee to the Placement Agent in the
event
the Company or Newco consummates certain financing transactions (the
“Finder’s
Agreement”).
The
obligation of the Placement Agent to consummate the PPO is subject to the
following additional conditions:
(x) Newco,
etc.
The
incorporation of Newco shall have been completed, and the Placement Agent
shall
receive in writing that the Company agrees to be bound the terms of and perform
all obligations under this Agreement.
(xi) Board
of Directors; Irrevocable Proxy.
Following the Closing of the PPO, the Board of Newco shall consist of three
members designated by the Company and two members designated by the Placement
Agent on behalf of the Subscribers. The Placement Agent shall receive the
irrevocable proxies described in Section 4(j) hereof.
(xii) Fund
Escrow Agreement.
The
Placement Agent shall receive a copy of a duly executed escrow agreement
in the
form previously delivered to the Placement Agent regarding the deposit of
funds
pending the Closing(s) of the PPO with a bank or trust company acceptable
to the
Placement Agent (together with the PPO Escrow Agreement, the “Fund
Escrow Agreements”).
(c) Blue
Sky.
Newco
will prepare and file the necessary documents so that offers and sales of
the
securities to be offered in the Placements may be made in certain jurisdictions
in the United States.
(d) Placement
Fee and Expenses.
(i) Pre-Bridge.
Prior
to or upon execution of this Agreement, the Company will (A) pay to the
Placement Agent a placement fee equal to 10% of the aggregate purchase price
of
the Series A Stock sold, and (B) reimburse the Placement Agent for its
accountable expenses incurred in connection with the Pre-Bridge. The Company
or
Newco shall also pay all expenses in connection with the qualification of
the
Series A Stock under the securities or Blue Sky laws of the states which
the
Placement Agent shall designate, including legal fees and filing
fees.
(ii) PPO.
Simultaneously with payment for and delivery of the PPO Shares at each Closing,
the Company or Newco shall: (A) pay to the Placement Agent a placement fee
equal
to 10% of the aggregate purchase price of the PPO Shares sold; and (B) issue
to
the Placement Agent or its designees, consistent with meeting the requirements
of an exemption from registration under the 1933 Act (i) ten-year warrants
in
the form attached hereto as Appendix A to purchase that number of shares
of
Common Stock of Newco equal to 15,000 warrants per $10,000 of gross proceeds
from the sale of the Series A Stock and the PPO Shares (the “Agent’s
Warrants”)
and
(ii) 50,000 shares of Common Stock of Newco (the “Agent’s Shares”). The Company
or Newco shall, upon demand, reimburse the Placement Agent for its accountable
expenses incurred in connection with the PPO and pay all expenses in connection
11
with
the
qualification of the Underlying Shares under the securities or Blue Sky laws
of
the states which the Placement Agent shall designate, including legal fees
and
filing fees. It is anticipated that the Placement Agent’s reimbursable expenses
in connection with the Placements will not exceed $180,000. The Placement
Agent
will promptly notify the Company in the event its accountable expenses will
materially exceed $180,000 and the Placement Agent and Company shall mutually
agree to any such greater amount.
(iii) Interest.
In the
event that for any reason the Company or Newco shall fail to pay to the
Placement Agent all or any portion of the fees payable hereunder when due,
interest shall accrue and be payable on the unpaid cash balance due hereunder
from the date when first due through and including the date when actually
collected by the Placement Agent, at a rate equal to four percent above the
prime rate of Citibank, N.A., in New York, New York, computed on a daily
basis
and adjusted as announced from time to time.
(e) Bring-Down
Opinions and Certificates.
If
there is more than one Closing, then at the request of the Placement Agent,
at
each such Closing there shall be delivered to the Placement Agent an updated
opinion and certificate as described in (v) and (vi) of Section 3(b) above,
respectively.
(f) No
Adverse Changes.
There
shall not have occurred, at any time prior to the applicable Closing (i)
any
domestic or international event, act or occurrence which has materially
disrupted, or in the Placement Agent’s opinion will in the immediate future
materially disrupt, the securities markets; (ii) a general suspension of,
or a
general limitation on prices for, trading in securities on the New York Stock
Exchange or other national market or exchange or in the over-the-counter
market;
(iii) any outbreak of major hostilities or other national or international
calamity; (iv) any banking moratorium declared by a state or federal authority;
(v) any moratorium declared in foreign exchange trading by major international
banks or other persons; (vi) any material interruption in the mail service
or
other means of communication within the United States; (vii) any material
adverse change in the business, properties, assets, results of operations,
or
financial condition of the Company or Newco; or (viii) any change in the
market
for securities in general or in political, financial, or economic conditions
which, in the Placement Agent’s judgment, makes it inadvisable to proceed with
the applicable Placement.
4. Covenants
of the Company and Newco.
(a) Use
of
Proceeds.
The net
proceeds of the Pre-Bridge will be used for general working capital purposes.
The
net
proceeds of the PPO will be used by Newco substantially as set forth in the
Memorandum. Neither the Company nor Newco shall use any of the proceeds from
the
Placements to repay any indebtedness of the Company or Newco as the case
may be
(other than trade payables in the ordinary course), including but not limited
to
indebtedness to any current executive officers, directors or principal
stockholders of the Company or Newco, or any subsidiary thereof.
(b) Expenses
of Offering.
The
Company and Newco shall be responsible for, and shall bear all expenses directly
incurred in connection with, the proposed Placements including, but
12
not
limited to, (i) legal fees of the Company’s and Newco’s counsel relating to the
costs of preparing the Offering Documents and all amendments, supplements
and
exhibits thereto and preparing and delivering all Placement Agent and selling
documents, Series A Stock and Warrant certificates; and (ii) blue sky fees,
filing fees and the fees and disbursements of Placement Agent’s counsel in
connection with blue sky matters (the “Company
and Newco Expenses”).
In
addition, the Company or Newco shall reimburse the Placement Agent for all
of
its reasonable out-of-pocket expenses incurred in connection with the
Placements, including, without limitation the Placement Agent’s mailing,
printing, copying, telephone, travel, background searches, due diligence
investigations, legal and consulting fees or other similar expenses (the
“Placement
Agent expenses”),
subject to Section 3(d).
If
the
Company or Newco decides not to proceed with the Placements for any reason
(other than (a) the failure to receive subscriptions for at least $500,000
in
gross proceeds in the PPO or (b) the material breach of the Placement Agent’s
representations, warranties or covenants in Section 5 of this Agreement)
or if
the Placement Agent decides not to proceed with the Placements because of
a
material breach by the Company or Newco of their representations, warranties,
or
covenants in this Agreement or as a result of material adverse changes in
the
affairs of the Company or Newco, the Company or Newco will be obligated to
pay
the Placement Agent liquidated damages of either $150,000 in cash (the method
of
payment to be at the sole discretion of the Placement Agent) and to reimburse
the Placement Agent for the Placement Agent expenses as set forth above.
The
Placement Agent shall have no liability to the Company or Newco for any reason
should the Placement Agent choose not to proceed with the Placements
contemplated hereby.
(c) Notification.
The
Company and Newco shall notify the Placement Agent immediately, and in writing,
(i) when any event shall have occurred during the period commencing on the
date
hereof and ending on the later of the last Closing or the Termination Date
as a
result of which the Offering Documents would include any untrue statement
of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (ii) of the
receipt of any notification with respect to the modification, rescission,
withdrawal or suspension of the qualification or registration of the Securities,
or of any exemption from such registration or qualification, in any
jurisdiction. The Company and Newco will use its best efforts to prevent
the
issuance of any such modification, rescission, withdrawal or suspension and,
if
any such modification, rescission, withdrawal or suspension is issued and
the
Placement Agent so request, to obtain the lifting thereof as promptly as
possible.
(d) Blue
Sky.
The
Company and Newco will use their best efforts to qualify or register the
securities to be offered in the Placements for offering and sale under, or
establish an exemption from such qualification or registration under, the
securities or “blue sky” laws of such jurisdictions as the Placement Agent may
reasonably request; provided however, that the Company and Newco will not
be
obligated to qualify as a dealer in securities in any jurisdiction in which
it
is not so qualified or consent to the general service of process in any such
jurisdiction. The Company and Newco will not consummate any sale of securities
pursuant to the Placements in any jurisdiction in which it is not so qualified
or in any manner in which such sale may not be lawfully made.
13
(e) Form
D
Filing.
The
Company or Newco shall file five copies of a Notice of Sales of Securities
on
Form D with the SEC no later than 15 days after the sale of the Series A
Stock
and no later than 15 days after the first sale of the PPO Shares. The Company
and Newco shall file promptly such amendments to such Notices on Form D as
shall
become necessary and shall also comply with any filing requirement imposed
by
the laws of any state or jurisdiction in which offers and sales are made.
The
Company or Newco shall furnish the Placement Agent with copies of all such
filings.
(f) Press
Releases, Etc.
The
Company and Newco shall not, during the period commencing on the date hereof
and
ending on the PPO Termination Date, issue any press release or other
communication, or hold any press conference with respect to the Company or
Newco, or its financial condition, results of operations, business, properties,
assets, or liabilities, or the Placements, without the prior consent of the
Placement Agent, which consent shall not be unreasonably withheld. The Company
and Newco shall not include information with respect to the Placements or
use
the Placement Agent’s name in any press release, advertisement or on any website
maintained by the Company or Newco with out the prior written consent of
the
Placement Agent, such consent not to be unreasonably withheld.
(g) O&D
Insurance; Board Compensation.
Within
30 days of the Initial Closing, the Company and Newco shall use its commercially
reasonable efforts to obtain at least $2,000,000 of officers and directors
liability insurance (the “O&D
Policy”),
and
shall keep such policy in effect during the longer of such period as the
holders
of the Series A Stock of PPO Shares have the right to designate one or more
members of the Board or one or more such designees serve as directors. The
Company and Newco shall not cancel or make substantive changes to the O&D
Policy without giving the Placement Agent at least 30 days’ prior written
notice. The Placement Agent’s (on behalf of the Subscribers) designee to the
Board shall be reimbursed for reasonable expenses incurred in attending Board
meetings, all in accordance with the Company’s or Newco’s general reimbursement
policies and procedures, and shall be entitled to such other compensation
as is
afforded other non-employee members of the Boards.
(h) Executive
Compensation.
The
compensation of the Company’s or Newco’s executive officers shall not increase
during the three-year period following the Pre-Bridge Closing without the
approval of a majority of the independent members of the Board.
(i) Restrictions
on Issuances of Securities.
During
the period commencing on the date hereof and ending on the later of (i) the
final Closing or (ii) the Bridge Termination Date, the Company and Newco
will
not, without the prior written consent of the Placement Agent, issue additional
shares of Common Stock, other than pursuant to the exercise of options or
warrants outstanding on the date hereof, or grant any warrants, options or
other
securities of the Company or Newco.
(j) Board
Designee; Irrevocable Proxy.
The
Company agrees to nominate a designee of the Placement Agent on behalf of
the
Subscribers to the Board of the Company, during the period that the Series
A
Stock remain outstanding and for three months thereafter if the Series A
Stock
is converted into equity pursuant to the terms of the mandatory conversion
features set forth in the Series A Stock Certificate of Designation. The
Board
of Newco will have the composition set forth in Section 3(b)(xi) hereof and
the
number of directors comprising the
14
Board
shall not increase without the consent of the Placement Agent’s Board designee.
The Placement Agent shall have the right to designate the nominee on the
Subscribers’ behalf and shall receive an irrevocable proxy from each of the
officers and directors of Newco granting the Placement Agent a proxy to vote
their shares for the election of directors solely for the purpose of enforcing
the Placement Agent’s rights described in this Section 4(j). In the event that
any director designated by the Placement Agent on behalf of the Subscribers
resigns or for any reason no longer serves as a director, then the Placement
Agent, on behalf of the Subscribers, shall designate a replacement for such
director and the Company agrees to nominate such designee in accordance with
this Section 4(j).
(k) Right
of First
Refusal.
If the
Pre-Bridge is consummated, the Placement Agent shall have the right of first
refusal (the “Right
of First
Refusal”)
for a
period of two years from February 26, 2004 to act as exclusive placement
agent or financial advisor in connection with any private placement of debt
(which shall not include for the purposes hereof any senior secured bank
financing) or equity securities of the Company and Newco, or any of their
subsidiaries. Accordingly, if during such period the Company or Newco intends
to
engage in any of the above-referenced transactions, the Company or Newco,
as the
case may be, shall notify the Placement Agent in writing of such intention
and
of the proposed terms of the transaction. The Company or Newco, as the case
may
be, shall thereafter promptly furnish the Placement Agent with such information
concerning the business, condition and prospects of the Company or Newco,
as the
Placement Agent may reasonably request. If within 20 business days of the
mailing by registered mail addressed to the Placement Agent of such notice
of
intention and statement of terms the Placement Agent does not accept in writing
such offer to act as underwriter or agent with respect to such offering or
investment banker with respect to such transaction, upon the terms proposed,
the
Company or Newco as the case may be, shall be free to negotiate terms with
other
underwriters or agents with respect to such offering or investment banker
with
respect to such transaction, and to effect such offering or transaction on
such
proposed terms. Before the Company or Newco shall accept any proposal less
favorable to the Company or Newco from such underwriter or agent or investment
banker or if such transaction is not consummated within six (6) months, the
Placement Agent’s preferential right shall be reinstated and the same procedure
with respect to such modified proposal as provided above shall be adopted;
provided, however, that the Placement Agent’s preferential right shall not be
reinstated later than two years and a day after the Initial Closing Date.
The
failure by the Placement Agent to exercise its Right of First
Refusal
in any particular instance shall not affect in any way such right with respect
to any other subsequent transaction.
5. Representations,
Warranties and Covenants of the Placement Agent.
(a) No
General Solicitation.
No form
of general solicitation or general advertising has been or will be used by
the
Placement Agent or any of its affiliates or representatives in connection
with
the offer and sale of any of the Series A Stock or PPO Shares, including,
but
not limited to, articles, notices or other communication published in any
newspaper, magazine or similar medium or broadcast over television or radio,
or
any seminar or meeting whose attendees have been invited by general solicitation
or general advertising.
(b) Delivery
of Memorandum.
Prior
to or simultaneously with the sale by the Company to any purchaser of any
of the
PPO Shares pursuant hereto, the Placement Agent will furnish to
15
such
purchaser a copy of the Memorandum (and any amendment thereof or supplement
thereto that the Company shall have furnished to the Placement Agent prior
to
the date of such sale).
(c) Registration;
Good Standing.
The
Placement Agent represents and warrants to the Company and Newco that it
is: (1)
a broker-dealer registered with the SEC pursuant to the Securities and Exchange
Act of 1934, as amended (the “1934
Act”);
(2) a
member in good standing of the National Association of Securities Dealers,
Inc.;
and (3) registered and qualified to act in each state and jurisdiction in
which
it is required to be registered as such in order to offer and sell the Series
A
Stock or the PPO Shares.
(d) Authorization.
The
Placement Agent represents and warrants to the Company and Newco that the
person
who has signed this Agreement on its behalf is duly authorized to so sign,
and
this Agreement is a valid and binding obligation of the Placement Agent,
enforceable in accordance with its terms, subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency, reorganization, moratorium
and
other laws affecting the rights of creditors generally and the discretion
of
courts in granting equitable remedies and except that enforceability of the
indemnification and contribution provisions set forth thereunder and hereunder
may be limited by the federal securities laws of the United States or state
securities laws or public policies related thereto.
(e) Compliance
with Regulation D.
Neither
the Placement Agent nor any of its affiliates nor any person acting on behalf
of, or as agent for, the forgoing, shall take any action in connection with
any
offering hereunder which would cause such offering not to comply with Rule
506
of Regulation D.
(f) Accredited
Investors.
The
Placement Agent shall not offer the Series A Stock of the PPO Shares to any
prospective Subscriber (i) if the Placement Agent has reason to believe that
material information supplied or the representations and warranties made
by that
person are not fully accurate; or (ii) unless immediately prior to making
such
offer, the Placement Agent reasonably believes that such person is an
“accredited investor” as defined in Rule 501 promulgated under the 1933
Act.
(g)
Investment
Intent/Accredited Investor.
The
Placement Agent represents and warrants to the Company and Newco that it
is an
“accredited investor” as defined in Rule 501 promulgated under the 1933 Act and
that it is receiving the Agent’s Shares and the Agent’s Warrants for investment
purposes and not with a present view toward resale or distribution.
6. Indemnification.
(a) The
Company and Newco agree to indemnify and hold harmless the Placement Agent
and
each Selected Dealer, if any, and their respective shareholders, directors,
officers, agents and controlling persons (an “Agent
Indemnified Party”)
against any and all loss, liability, claim, damage and expense whatsoever
(and
all actions in respect thereof), and to reimburse the
16
Placement
Agent for reasonable legal fees and related expenses as incurred (including,
but
not limited to the costs of investigating, preparing or defending any such
action or claim whether or not in connection with litigation in which the
Placement Agent is a party and the costs of giving testimony or furnishing
documents in response to a subpoena or otherwise), caused by or arising out
of
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Transaction Documents or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading
(provided, however, that the Company and Newco shall not be liable in any
such
case to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any untrue statement of a material fact or
alleged untrue statement or a material fact provided by the Placement Agent
in
writing to the Company or Newco, as the case may be), (ii) any violation
by the
Company or Newco of the federal securities laws or the securities laws of
any
states, or otherwise arising out of the Placement Agent’s engagement hereunder,
except in respect of any matters as to which the Placement Agent shall have
been
adjudicated to have acted with gross negligence, or (iii) any breach by the
Company or Newco of any of its representations, warranties or covenants
contained in this Agreement;
provided,
however,
that in
the case of each of clauses (ii) and (iii) hereof, there has been a final
adjudication of such violation or breach by a court of competent
jurisdiction.
(b) The
Placement Agent agrees to indemnify and hold harmless the Company and Newco
and
their shareholders, directors, officers, agents and controlling persons (a
“Company
or Newco Indemnified Party”
and,
together with an Agent Indemnified Party, an “Indemnified
Party”)
against any and all loss, liability, claim, damage and expense whatsoever
(and
all actions in respect thereof), and to reimburse the Company or Newco for
reasonable legal fees and related expenses as incurred (including, but not
limited to the costs of investigating, preparing or defending any such action
or
claim whether or not in connection with litigation in which the Company or
Newco
is a party and the costs of giving testimony or furnishing documents in response
to a subpoena or otherwise), caused by or arising out of (i) any breach by
the
Placement Agent of any of its representations, warranties and covenants
contained in this Agreement, or (ii) any violation by the Placement Agent
of the
federal securities laws or the securities laws of any state, or otherwise
arising out of the Placement Agent’s engagement hereunder, except in respect of
any matters as to which the Company and Newco shall have been adjudicated
to
have acted with gross negligence; provided,
however,
that in
the case of each of clauses (i) and (ii) hereof, there has been a final
adjudication of such breach or violation by a court of competent jurisdiction;
and provided,
however,
that
the aggregate liability of the Placement Agent under this Section 6 shall
not
exceed an amount equal to the aggregate placement fees received by the Placement
Agent pursuant to Section 3(d)(i) or Section 3(d)(ii) hereof.
(c) Promptly
after receipt by an Indemnified Party under this Section of notice of the
commencement of any action, the Indemnified Party will, if a claim in respect
thereof is to be made against the party from whom indemnification is sought
under this Section 6 (the “Indemnifying
Party”),
notify in writing the Indemnifying Party of the commencement thereof; but
the
omission so to notify the Indemnifying Party will not relieve the Indemnifying
Party from any liability which it may have to the Indemnified Party otherwise
under this Section except to the extent the defense of the claim is prejudiced.
In case any such action is brought against an Indemnified Party, and it notifies
the Indemnifying Party of the commencement thereof, the
17
Indemnifying
Party will be entitled to participate in, and, to the extent that it may
wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, subject to the provisions herein stated, with counsel
reasonably satisfactory to the Indemnified Party, and after notice from the
Indemnifying Party to the Indemnified Party of its election so to assume
the
defense thereof, the Indemnifying Party will not be liable to the Indemnified
Party under this Section for any legal or other expenses subsequently incurred
by the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation (provided the Indemnifying Party has been
advised in writing that such investigation is being undertaken). The Indemnified
Party shall have the right to employ separate counsel in any such action
and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the Indemnifying Party if the Indemnifying
Party
has assumed the defense of the action with counsel reasonably satisfactory
to
the Indemnified Party; provided that the reasonable fees and expenses of
such
counsel shall be at the expense of the Indemnifying Party if (i) the employment
of such counsel has been specifically authorized in writing by the Indemnifying
Party or (ii) the named parties to any such action (including any impleaded
parties) include both the Indemnified Party or Parties and the Indemnifying
Party and, in the reasonable judgment of counsel for the Indemnified Party,
it
is advisable for the Indemnified Party or Parties to be represented by separate
counsel due to an actual conflict of interest (in which case the Indemnifying
Party shall not have the right to assume the defense of such action on behalf
of
an Indemnified Party or Parties), it being understood, however, that the
Indemnifying Party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys
for all
the Indemnified Parties. No settlement of any action against an Indemnified
Party shall be made unless such an Indemnified Party is fully and completely
released in connection therewith.
7. Contribution.
To
provide for just and equitable contribution, if an Indemnified Party makes
a
claim for indemnification pursuant to Section 6 but it is found in a final
judicial determination, not subject to further appeal, that such indemnification
may not be enforced in such case, even though this Agreement expressly provides
for indemnification in such case, then the Company and Newco (including for
this
purpose any contribution made by or on behalf of any officer, director, employee
or agent for the Company or Newco, or any controlling person of the Company
or
Newco), on the one hand, and the Placement Agent and any Selected Dealers
(including for this purpose any contribution by or on behalf of an Indemnified
Party), on the other hand, shall contribute to the losses, liabilities, claims,
damages, and expenses whatsoever to which any of them may be subject, in
such
proportions as are appropriate to reflect the relative benefits received
by the
Company or Newco, on the one hand, and the Placement Agent and the Selected
Dealers, on the other hand; provided, however, that if applicable law does
not
permit such allocation, then other relevant equitable considerations such
as the
relative fault of the Company or Newco and the Placement Agent and the Selected
Dealers in connection with the facts which resulted in such losses, liabilities,
claims, damages, and expenses shall also be considered. In no case shall
the
Placement Agent or a Selected Dealer be responsible for a portion of the
contribution obligation in excess of the compensation received by it or the
Selected Dealers, as the case may be. No person guilty of a fraudulent
misrepresentation shall be entitled to
18
contribution
from any person who is not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person, if any, who controls the Placement
Agent or a Selected Dealer within the meaning of Section 15 of the 1933 Act
or
Section 20(a) of the 1934 Act and each officer, director, stockholder, employee
and agent of the Placement Agent or a Selected Dealer, shall have the same
rights to contribution as the Placement Agent or the Selected Dealer, and
each
person, if any, who controls the Company or Newco within the meaning of Section
15 of the 1933 Act or Section 20(a) of the 1934 Act and each officer, director,
employee and agent of the Company or Newco, shall have the same rights to
contribution as the Company or Newco, subject in each case to the provisions
of
this Section 7. Anything in this Section 7 to the contrary notwithstanding,
no
party shall be liable for contribution with respect to the settlement of
any
claim or action effected without its written consent. This Section 7 is intended
to supersede any right to contribution under the 1933 Act, the 1934 Act,
or
otherwise.
8. Miscellaneous.
(a) Survival.
Any
termination of any offering hereunder without consummation thereof shall
be
without obligation on the part of any party except that the indemnification
provided in Section 6 hereof and the contribution provided in Section 7 hereof
shall survive any termination and shall survive the final Closing for a period
of two years.
(b) Representations,
Warranties and Covenants to Survive Delivery.
The
respective representations, warranties, indemnities, agreements, covenants
and
other statements as of the date hereof and as of the date of each Closing
shall
survive execution of this Agreement and delivery of the Series A Stock and
the
PPO Shares and the termination of this Agreement for a period of one year
after
such respective event.
(c) No
Other Beneficiaries.
This
Agreement is intended for the sole and exclusive benefit of the parties hereto
and their respective successors and controlling persons, and no other person,
firm or corporation shall have any third-party beneficiary or other rights
hereunder.
(d) Governing
Law; Resolution of Disputes.
This
Agreement shall be governed by and construed in accordance with the law of
the
State of New York without regard to conflict of law provisions. The Placement
Agent, the Company and Newco will attempt to settle any claim or controversy
arising out of this Agreement through consultation and negotiation in good
faith
and a spirit of mutual cooperation. Should such attempts fail, then the dispute
will be mediated by a mutually acceptable mediator to be chosen by the Placement
Agent the Company and Newco within 15 days after written notice from either
party demanding mediation. Neither party may unreasonably withhold consent
to
the selection of a mediator, and the parties will share the costs of the
mediation equally. Any dispute which the parties cannot resolve through
negotiation or mediation within six months of the date of the initial demand
for
it by one of the parties may then be submitted to the courts for resolution.
The
use of mediation will not be construed under the doctrine of latches, waiver
or
estoppel to affect adversely the rights of either party. Nothing in this
paragraph will prevent either party from resorting to judicial proceedings
if
(a) good faith efforts to resolve the dispute under these procedures have
been
unsuccessful or (b) interim relief from a court is necessary to prevent serious
and irreparable injury.
19
(e) Counterparts.
This
Agreement may be signed in counterparts with the same effect as if both parties
had signed one and the same instrument.
(f) Notices.
Any
communications specifically required hereunder to be in writing, if sent
to the
Placement Agent, will be sent by overnight courier providing a receipt of
delivery or by certified or registered mail to it at Strasbourger Xxxxxxx
Tulcin
Xxxxx Incorporated, 00 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Att: Xxx Xxxxxxxxx, with a copy to Gottbetter
& Partners, 000 Xxxxxxx Xxx., 00xx
Xxxxx,
Xxx Xxxx, XX00000, Att: Xxxxx X. Xxxxxxxxxxx and if sent to the Company or
Newco, will be sent by overnight courier providing a receipt of delivery
or by
certified or registered mail to it at 0000 X. Xxxxxx Xxxxxx, Xxxxx Xxxx,
Xxxxxxx
00000, Att: Xxxx Xxxxxxx, with a copy to BT Law, 600 1st
Source
Bank Building, 000 X. Xxxxxxxx, Xxxxx Xxxx Xxxxxxx 00000, Att: Xxxxxxx X.
Xxxxx.
(g) Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties with respect to
the
matters herein referred and supersedes all prior agreements and understandings,
written and oral, between the parties with respect to the subject matter
hereof.
Neither this Agreement nor any term hereof may be changed, waived or terminated
orally, except by an instrument in writing signed by the party against which
enforcement of the change, waiver or termination is sought.
20
If
the
Placement Agent finds the foregoing is in accordance with its understanding
with
the Company and Newco, kindly sign and return to the Company and Newco a
counterpart hereof, whereupon this instrument along with all counterparts
will
become a binding agreement between the Placement Agent the Company and
Newco.
Very
truly yours,
|
||
MAGNETECH
INDUSTRIAL SERVICES, INC.
|
||
By:
|
/s/
Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx
X. Xxxxxxx
|
|
Title:
|
President
|
By:
|
/s/
Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx
X. Xxxxxxx
|
|
Title:
|
President
and Chief Executive Officer
|
Agreed:
|
|||||||
STRASBOURGER
XXXXXXX TULCIN XXXXX INCORPORATED
|
|||||||
By:
|
/s/
Xxxxxxx X. Xxxxxxxxxx
|
||||||
Name:
|
Xxxxxxx
X. Xxxxxxxxxx
|
||||||
Title:
|
President
|
21
Schedule
2(c)
Capitalization
As
of the
date hereof, Newco is authorized to issue 220,000,000 shares of capital stock,
consisting of 200,000,000 shares of common stock without par value and
20,000,000 shares of preferred stock without par value. Newco has issued
and
outstanding 79,500,000 shares of common stock.
As
of the
date hereof, the Company is authorized to issue a total of 1,010,000 shares
of
stock, divided into the following classes: (a) 10,000 shares of Common Stock,
with no par value, and (b) 1,000,000 shares of Preferred Stock. The Company
has
issued 750,000 shares of Series A Convertible Redeemable Preferred Stock
(“Series A Shares”) and 1,000 shares of Common Stock. The Series A Shares are
convertible into shares of common stock of Newco.
The
Company has received the following loans from St. Xxxxxx Capital Bank (the
“Bank”):
1.
|
One
Million Dollar ($1,000,000) line of credit, as evidenced by a promissory
note executed in favor of the Bank dated November 5, 2003 and that
certain
Business
Loan Agreement by and between the Company and the Bank dated September
13,
2002, as amended by that certain First Amendment to Business Loan
Agreement dated November 5, 2003, and that certain Second Amendment
to
Business Loan Agreement dated March 24, 2004 (the “Loan
Agreement”).
The note is payable on demand and is secured by the assets of the
Company.
|
2.
|
Four
Hundred Fifty Thousand Dollar ($450,000) line of credit, as evidenced
by a
promissory note executed in favor of the Bank dated November 5,
2003 and
the Loan Agreement. The note is payable on demand and is secured
by the
assets of the Company.
|
3.
|
Term
loan in the amount of Five Hundred Thousand Dollars ($500,000),
as
evidenced by a promissory note executed in favor of the Bank dated
December 11, 2001. The maturity date of the note is December 11,
2006. The
note is secured by the assets of the
Company.
|
The
Company has outstanding loan obligations to Xxxx X. Xxxxxxx, evidenced by
the
following promissory notes:
1.
|
Promissory
Note, dated effective January 1, 2004, executed by the Company
in favor of
Xxxx X. Xxxxxxx in the principal amount of $3,000,000. The note
evidences
the balance of the outstanding loan obligation as of January 1,
2004. The
original loan was made prior to January 1,
2004.
|
22
2.
|
Promissory
Note, dated effective April 1, 2004, executed by the Company in
favor of
Xxxx X. Xxxxxxx in the principal amount of $196,000. The note evidences
the balance of the outstanding loan obligation due to Xx. Xxxxxxx
as of
April 1, 2004. The loan was made prior to April 1,
2004.
|
Pursuant
to Section 3(d) of this Agreement, upon the Closing(s), Newco will issue
the
Agent's Warrants and the Agent's Shares.
23
Schedule
2(d)
Subsidiaries
and Investments
1. Newco
owns 100% of the common shares of the Company.
2. The
Company owns 100% of Xxxxxxx Electric LLC.
24
Schedule
2(e)
Financial
Statements
FINANCIAL
STATEMENTS
Following
are the Company’s unaudited, management-compiled pro-forma financial statements
for the fiscal year ended December 31, 2003 and the balance sheets as at
December 31, 2003.
Pro
forma Balance Sheet - December 31, 2003
Magnetech
Industrial Services, Inc.
|
Xxxxxxx
Electric LLC
|
Pro
forma
|
||||||||
$$
|
$
|
|||||||||
Cash
|
(457,684
|
)
|
(12,490
|
)
|
(470,174
|
)
|
||||
Accounts
Receivable-Trade
|
3,077,946
|
94,243
|
3,172,189
|
|||||||
Accounts
Receivable-Inter-Co
|
225,095
|
112,666
|
0
|
|||||||
Prepaid
Expenses
|
147,112
|
1,521
|
148,632
|
|||||||
Inventory
|
2,890,967
|
30,092
|
2,921,059
|
|||||||
Other
Current Assets
|
49,827
|
0
|
49,827
|
|||||||
CURRENT
ASSETS
|
5,933,263
|
226,032
|
6,159,295
|
|||||||
Fixed
Assets
|
2,334,769
|
73,927
|
2,408,695
|
|||||||
Accumulated
Depreciation
|
(561,387
|
)
|
(5,330
|
)
|
(566,717
|
)
|
||||
NET
FIXED ASSETS
|
1,773,381
|
68,597
|
1,841,978
|
|||||||
Patents/Covenants
|
154,032
|
0
|
154,032
|
|||||||
Accumulated
Amortization
|
(102,937
|
)
|
0
|
(102,937
|
)
|
|||||
PATENTS/COVENANTS
|
51,095
|
0
|
51,095
|
|||||||
OTHER
NONCURRENT ASSETS
|
0
|
50
|
50
|
|||||||
TOTAL
ASSETS
|
7,757,739
|
294,679
|
8,052,418
|
|||||||
Accounts
Payable-Trade
|
1,916,457
|
51,669
|
1,968,125
|
|||||||
Accounts
Payable-Inter-Co
|
112,666
|
225,095
|
0
|
|||||||
Accruals
|
591,640
|
71,839
|
663,479
|
|||||||
Long
Term Debt-current portion
|
1,546,315
|
0
|
1,546,315
|
|||||||
CURRENT
LIABILITIES
|
4,167,078
|
348,602
|
4,515,680
|
|||||||
LONG-TERM
DEBT
|
3,200,000
|
19,879
|
3,219,879
|
|||||||
TOTAL
LIABILITIES
|
7,367,078
|
368,481
|
7,735,559
|
Common
Stock
|
1,000,000
|
500
|
1,000,500
|
|||||||
Retained
Earnings
|
(3,712,294
|
)
|
(74,302
|
)
|
(3,786,596
|
)
|
||||
Profit
year to date
|
0
|
0
|
0
|
|||||||
Additional
Paid in Capital
|
3,102,955
|
0
|
3,102,955
|
|||||||
EQUITY
|
390,661
|
(73,802
|
)
|
316,858
|
||||||
LIABILITIES
& EQUITY
|
7,757,739
|
294,679
|
8,052,418
|
25
Magnetech
Integrated Services, Corp.
Proforma
Income Statement - year ending December 31, 2003
Magnetech
Industrial Services, Inc.
|
Xxxxxxx
Electric LLC
|
Pro
forma Consolidation
|
||||||||
$
|
$
|
$
|
||||||||
Sales
Revenues
|
15,279,443
|
212,113
|
15,491,556
|
|||||||
Cost
of Sales
|
11,883,883
|
223,853
|
12,107,736
|
|||||||
Gross
Profit
|
3,395,560
|
(11,740
|
)
|
3,383,820
|
||||||
GP
%
|
22.2
|
%
|
-5.5
|
%
|
21.8
|
%
|
||||
Selling,
general and administration
expenses
|
4,309,064
|
62,562
|
4,371,626
|
|||||||
Operating
Income (Loss)
|
(913,504
|
)
|
(74,302
|
)
|
(987,806
|
)
|
||||
Interest
expense
|
125,624
|
0
|
125,624
|
|||||||
Net
(Loss)
|
(1,039,128
|
)
|
(74,302
|
)
|
(1,113,430
|
)
|
||||
EBITDA
|
(608,190
|
)
|
(68,972
|
)
|
(677,162
|
)
|
26
Schedule
2(f)
Absence
of Changes
1.
|
See
Schedule 2(c) for debt obligations incurred by the Company.
|
2.
|
As
indicated on Schedule 2(c), the Loan Agreement was amended on March
24,
2004.
|
3.
|
The
Company has sold shares of Series A Stock in connection with the
Pre-Bridge.
|
27
Schedule
2(h)
Proprietary
Rights
U.S.
Patent No. 6,412,837 (U.S. Serial No. 09/749,366) is not in the name of the
Company. The Company is attempting to obtain an assignment of the patent
from
its owners: Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxx, Xxxxx X. Xxxx
and
Xxxx Xxxx. The Company is not currently using this patent, but may do so
in the
future.
28
Schedule
2(g)
Title
The
Bank
has a security interest in all of the Company’s inventory, raw materials, work
in process, equipment, vehicles, furniture, fixture, accounts, general
intangibles and other assets as
evidenced by UCC-1 Financing Statement number 2349461
filed
with the Indiana Secretary of State.
29
IMPORTANT:
|
Investor
Name: ____________________
|
Please
Complete
|
INDIVIDUAL
INVESTOR QUESTIONNAIRE
_________________________
__________________________
0000
X.
Xxxxxx Xx.
Xxxxx
Xxxx, Xxxxxxx 00000
The
information contained in this Questionnaire is being furnished in order
to
determine whether the undersigned’s subscription to purchase shares of Common
Stock (the “Common Stock”) in Magnetech Integrated Services Corp (the “Company”)
may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Strasbourger Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000
if you have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned understands, however, that the Company may present this
Questionnaire to such parties as it deems appropriate if called upon
to
establish that the proposed offer and sale of the Common Stock is exempt
from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned understands that the offering is required to be reported
to the
Securities and Exchange Commission and to various state securities or
“blue sky”
regulators.
IF
YOU ARE PURCHASING COMMON STOCK WITH YOUR SPOUSE, YOU MUST
BOTH SIGN THE
SIGNATURE PAGE (PAGE A_5).
|
IF
YOU ARE PURCHASING COMMON STOCK WITH ANOTHER PERSON NOT YOUR
SPOUSE, YOU
MUST EACH FILL OUT A SEPARATE QUESTIONNAIRE.
Please make a photocopy of pages A_1 to A_5 and return both
completed
Questionnaires to the Placement Agent in the same
envelope.
|
I.
|
PLEASE
INDICATE DESIRED TYPE OF OWNERSHIP OF COMMON
STOCK:
|
[ ] Individual
[ ] Joint
Tenants (rights of survivorship)
[ ] Tenants
in Common (no rights of survivorship)
A-1
II.
|
PLEASE
CHECK ANY OF STATEMENTS 1-4 BELOW THAT APPLY TO
YOU.
|
[ ]
|
1.
|
I
have an individual net worth*
or
joint net worth with my spouse in excess of $1,000,000.
|
[ ]
|
2.
|
I
have had an individual income*
in
excess of $200,000 in each of the previous two years and I
reasonably
expect an individual income in excess of $200,000 for this
year. NOTE: IF
YOU ARE BUYING JOINTLY WITH YOUR SPOUSE, YOU MUST EACH HAVE
AN INDIVIDUAL
INCOME IN EXCESS OF $200,000 IN EACH OF THESE YEARS IN ORDER
TO CHECK THIS
BOX.
|
[ ]
|
3.
|
My
spouse and I have had a joint income*
in
excess of $300,000 in each of the previous two years and I
reasonably
expect a joint income in excess of $300,000 for this
year.
|
[ ]
|
4.
|
I
am a director and/or an executive officer of the Company as
such terms are
defined in Regulation D promulgated under the Securities Act
of 1933, as
amended.
|
III.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, I certify the following (or, if I am purchasing
Common Stock with my spouse as co-owner, each of us certifies the
following):
(a)
|
that
I am at least 21 years of age;
|
(b)
|
that
my purchase of Common Stock will be solely for my own account
and not for
the account of any other person (other than my spouse, if
co-owner);
|
(c)
|
that
the name, home address and social security number or taxpayer
identification number as set forth in this Questionnaire are
true, correct
and complete; and
|
(d)
|
that
one of the following is true and correct (check
one):
|
__________________
*For
purposes of this Questionnaire, the term "net worth" means the excess
of total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt
income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term
capital
gains has been reduced in arriving at adjusted gross income.
A-2
Purchaser
|
Spouse,
if Co-Owner
|
||
[ ]
|
[ ]
|
I
am a United States citizen or resident of the United States
for United
States federal income tax purposes.
|
|
[ ]
|
[ ]
|
I
am neither a United States citizen nor a resident of the United
States for
United States federal income tax
purposes.
|
IV.
|
GENERAL
INFORMATION
|
(a)
|
PERSONAL
INFORMATION
|
Purchaser
|
||||||||||||||
Name:
|
||||||||||||||
Social
Security or Taxpayer Identification Number:
|
||||||||||||||
Residence
Address:
|
||||||||||||||
(Number
and Street)
|
||||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
||||||||||||
Residence
Telephone Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
Residence
Facsimile Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
Name
of Business:
|
||||||||||||||
Business
Address:
|
||||||||||||||
(Number
and Street)
|
||||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
||||||||||||
Business
Telephone Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
Business
Facsimile Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
I
prefer to have correspondence sent to:
|
[ ] Residence
|
[ ] Business
|
A-3
E-mail
Address:
|
||
NASD
Affiliation or Association, if any:
|
||
If
none, check here
|
[ ]
|
Spouse,
if Co-Owner
|
||||||||||||
Name:
|
||||||||||||
Social
Security or Taxpayer Identification Number:
|
||||||||||||
Residence
Address (if different from Purchaser’s):
|
||||||||||||
(Number
and Street)
|
||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
||||||||||
Residence
Telephone Number Address (if different from Purchaser’s):
|
||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||
Name
of Business Address (if different from Purchaser’s):
|
||||||||||||
Business
Address Address (if different from Purchaser’s):
|
||||||||||||
(Number
and Street)
|
||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
||||||||||
Business
Telephone Number Address (if different from Purchaser’s):
|
||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||
I
prefer to have correspondence sent to:
|
[ ] Residence
|
[ ] Business
|
||||||||||
NASD
Affiliation or Association, if any:
|
||||||||||||
If
none, check here
|
[ ]
|
V. SIGNATURE
The
Signature Page to this Questionnaire is contained on page A-5, entitled
Individual Signature Page.
A-4
INDIVIDUAL
SIGNATURE PAGE
_____________________________
_____________________________
The
undersigned represents that (a) the information contained in this Questionnaire
is complete and accurate and (b) he/she will telephone Xxxxxx Xxxx at
000-000-0000 immediately if any material change in any of this information
occurs before the acceptance of his/her subscription and will promptly
send
Xxxxxx Xxxx confirmation of such change.
Dollar
Amount of Common Stock Applied For
|
Date
|
||
|
|
|
|
|
|
Name
(Please Type or Print)
|
|
|
|
|
|
|
|
Signature
|
|
|
|
|
|
|
|
Name
of Spouse if Co-Owner
|
|
|
|
(Please
Type or Print)
|
|
|
|
|
|
|
|
Signature
of Spouse if Co-Owner
|
|
|
|
|
|
IF
YOU ARE PURCHASING COMMON STOCK WITH YOUR SPOUSE, YOU MUST
BOTH SIGN THIS
SIGNATURE PAGE (PAGE A-5).
|
IF
YOU ARE PURCHASING COMMON STOCK WITH YOUR SPOUSE, YOU MUST
BOTH SIGN THIS
SIGNATURE PAGE (PAGE A_5).
|
IF
YOU ARE PURCHASING COMMON STOCK WITH ANOTHER PERSON NOT YOUR
SPOUSE, YOU
MUST EACH FILL OUT A SEPARATE QUESTIONNAIRE. Please
make a photocopy of pages A_1 to A_5 and return both completed
Questionnaires to the Placement Agent in the same
envelope.
|
THE
SECURITIES COMPRISING THE COMMON STOCK HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
A-5
IMPORTANT:
|
Investor
Name: ________________________
|
Please
Complete
|
TRUST
QUESTIONNAIRE
__________________________
_________________________
0000
X.
Xxxxxx Xx.
Xxxxx
Xxxx, Xxxxxxx 00000
The
information contained in this Questionnaire is being furnished in order
to
determine whether the undersigned TRUST’s subscription to purchase shares of
Common Stock (the “Common Stock”) of Magnetech Integrated Services Corp (the
“Company”) may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Xxxxxxxxxxxx Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000
if you have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned TRUST understands, however, that the Company may present
this
Questionnaire to such parties as it deems appropriate if called upon
to
establish that the proposed offer and sale of the Common Stock is exempt
from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned TRUST understands that the offering is required to be reported
to
the Securities and Exchange Commission and to various state securities
or “blue
sky” regulators.
NOTE:
RETIREMENT PLANS SHOULD COMPLETE THE QUESTIONNAIRE ON PAGES
E_1 to
E-5.
|
I. PLEASE
CHECK STATEMENTS 1 AND 2 BELOW, AS APPLICABLE.
[ ]
|
1.
|
(a)
|
the
TRUST has total assets in excess of $5,000,000; and
|
|
(b)
|
the
TRUST was not formed for the specific purpose of acquiring
the Common
Stock; and
|
|||
(c)
|
the
purchase by the TRUST is directed by a person who has such
knowledge and
experience in financial and business matters that he/she is
capable of
evaluating the merits and risks of an investment in the Common
Stock.
|
B-1
[ ]
|
2.
|
The
grantor of the TRUST may revoke the TRUST at any time; the
grantor retains
sole investment control over the assets of the trust and
|
|||
(a)
|
the
grantor is a natural person whose individual net worth* or
joint net worth
with the grantor’s spouse exceeds $1,000,000; or
|
||||
(b)
|
the
grantor is a natural person who had an individual income*
in
excess of $200,000 in each of the previous two years and who
reasonably
expects an individual income in excess of $200,000 for this
year;
or
|
||||
(c)
|
the
grantor is a natural person who, together with his or her spouse,
has had
a joint income*
in
excess of $300,000 in each of the previous two years and who
reasonably
expects a joint income in excess of $300,000 for this
year.
|
||||
IF
YOU CHECKED STATEMENT 2 IN SECTION I AND DID NOT CHECK STATEMENT
1, THE
TRUST MUST PROVIDE A COMPLETED INDIVIDUAL INVESTOR QUESTIONNAIRE
(PAGES
A-1 TO A-5) FOR EACH
GRANTOR.
|
II.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, the undersigned certifies the
following:
(a)
|
that
the TRUST’s purchase of the Common Stock will be solely for the TRUST’s
own account and not for the account of any other
person;
|
|
(b)
|
that
the TRUST’s purchase of the Common Stock is within the investment powers
and authority of the TRUST (as set forth in the declaration
of trust or
other governing instrument) and that all necessary consents,
approvals and
authorizations for such purchase have been obtained and that
each person
who signs the Signature Page has all requisite power and authority
as
trustee to execute this Questionnaire and the Stock Purchase
Agreement on
behalf of the TRUST;
|
|
(c)
|
that
the TRUST has not been established in connection with either
(i) an
employee benefit plan (as defined in Section 3(3) of ERISA),
whether or
not subject to the provisions of Title I of ERISA, or (ii)
a plan
described in Section 4975(e)(i) of the Internal Revenue
Code;
|
|
(d)
|
that
the TRUST’s name, address of principal office, place of formation and
taxpayer identification number as set forth in this Questionnaire
are
true, correct and complete; and
|
|
(e)
|
that
one of the following is true and correct (check
one):
|
________________________
*For
purposes of this Questionnaire, the term "net worth" means the excess
of total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt
income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term
capital
gains has been reduced in arriving at adjusted gross income.
B-2
[ ]
|
(i)
|
the
TRUST is an estate or trust whose income from sources outside
of the
United States is includable in its gross income for United
States federal
tax purposes regardless of its connection with a trade or business
carried
on in the United States.
|
|
[ ]
|
(ii)
|
the
TRUST is an estate or trust whose income from sources outside
the United
States is not includable in its gross income for United States
federal
income taxes purposes regardless of its connection with a trade
or
business carried on in the United
States.
|
III.
|
GENERAL
INFORMATION
|
(a)
|
PROSPECTIVE
PURCHASER (THE TRUST)
|
Name:
|
|||||
Address:
|
|||||
(Number
and Street)
|
|||||
(City)
|
(State)
|
(Zip
Code)
|
|||
Address
for Correspondence (if different):
|
|||||
(Number
and Street)
|
|||||
(City)
|
(State)
|
(Zip
Code)
|
|||
Telephone
Number:
|
|||||
(Area
Code)
|
(Number)
|
||||
State
in which Formed:
|
|||||
Date
of Formation:
|
|||||
Taxpayer
Identification Number:
|
(b)
|
TRUSTEES
WHO ARE EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
TRUST
|
Name(s)
of Trustee(s):
|
|||
E-mail
Address:
|
|||
NASD
Affiliation or Association of Trustee(s), if any:
|
|||
If
none, check here
|
[ ]
|
B-3
IV.
|
ADDITIONAL
INFORMATION
|
A
TRUST
must attach a copy of its declaration of trust or other governing instrument,
as
amended, as well as all other documents that authorize the TRUST to invest
in
the Common Stock. All documentation must be complete and correct.
V.
|
SIGNATURE
|
The
Signature Page to this Questionnaire is contained on page B-5, entitled
Trust
Signature Page.
B-4
TRUST
SIGNATURE PAGE
_______________________
MAGNETECH
INTEGRATED SERVICES CORP
________________________
1. The
undersigned represents that (a) the information contained in this Questionnaire
is complete and accurate and (b) the TRUST will notify Xxxxxx Xxxx, at
000-000-0000 immediately if any material change in any of this information
occurs before the acceptance of the TRUST’s subscription and will promptly send
Xxxxxx Xxxx written confirmation of such change.
2. The
undersigned TRUST hereby represents and warrants that the persons signing
this
Questionnaire on behalf of the TRUST are duly authorized to acquire the
Common
Stock and sign this Questionnaire and the Stock Purchase Agreement on
behalf of
the TRUST and, further, that the undersigned TRUST has all requisite
authority
to purchase such Common Stock and enter into the Stock Purchase
Agreement.
Dollar
Amount of Common Stock Applied For
|
Date
|
|
Title
of Trust
|
||
(Please
Type or Print)
|
||
By:
|
||
Signature
of Trustee
|
||
Name
of Trustee:
|
||
(Please
Type or Print)
|
||
By:
|
||
Signature
of Co-Trustee
|
||
Name
of Co-Trustee:
|
||
(Please
Type or Print)
|
THE
SECURITIES COMPRISING THE COMMON STOCK HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
B-5
IMPORTANT:
|
Investor
Name:_________________
|
Please
Complete
|
PARTNERSHIP
QUESTIONNAIRE
________________________
MAGNETECH
INTEGRATED SERVICES CORP
________________________
Magnetech
Integrated Services Corp
0000
X.
Xxxxxx Xx.
Xxxxx
Xxxx, Xxxxxxx 00000
The
information contained in this Questionnaire is being furnished in order
to
determine whether the undersigned PARTNERSHIP’s subscription to purchase shares
of Common Stock (the “Common Stock”) of Magnetech Integrated Services Corp (the
“Company”) may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Xxxxxxxxxxxx Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000
if you have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned PARTNERSHIP understands, however, that the Company may present
this
Questionnaire to such parties as it deems appropriate if called upon
to
establish that the proposed offer and sale of the Common Stock is exempt
from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned PARTNERSHIP understands that the offering is required to
be reported
to the Securities and Exchange Commission and to various state securities
or
“blue sky” regulators.
I.
|
PLEASE
CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLY TO THE
PARTNERSHIP.
|
[ ]
|
1.
|
Each
of the partners of the undersigned PARTNERSHIP is able to certify
that
such partner meets at least one of the following
conditions:
|
|
(a)
|
The
partner is a natural person whose individual net worth* or
joint net worth with his or her spouse exceeds
$1,000,000.
|
________________________
*For
purposes of this Questionnaire, the term "net worth" means the excess
of total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt
income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term
capital
gains has been reduced in arriving at adjusted gross income.
C-1
(b)
|
|
The
partner is a natural person whose individual income*
was in excess of $200,000 in each of the previous two years
and who
reasonably expects an individual income in excess of $200,000
for this
year.
|
|
[ ]
|
2.
|
Each
of the partners of the undersigned PARTNERSHIP is able to certify
that
such partner is a natural person who, together with his or
her spouse, has
had a joint income*
in
excess of $300,000 in each of the previous two years and who
reasonably
expects a joint income in excess of $300,000 for this
year.
|
|
[ ]
|
3.
|
The
undersigned PARTNERSHIP: (a) was not formed for the specific
purpose of
acquiring the Common Stock; and
(b) has total assets in excess of
$5,000,000.
|
IF
YOU CHECKED STATEMENT 1 OR STATEMENT 2 IN SECTION I AND DID
NOT CHECK
STATEMENT 3, YOU MUST PROVIDE A LETTER SIGNED BY A GENERAL
PARTNER OF THE
UNDERSIGNED PARTNERSHIP LISTING THE NAME OF EACH PARTNER (WHETHER
A
GENERAL OR LIMITED PARTNER) AND THE REASON (UNDER STATEMENT
1 OR STATEMENT
2) SUCH PARTNER QUALIFIES AS AN ACCREDITED INVESTOR (ON THE
BASIS OF NET
WORTH, INDIVIDUAL INCOME OR JOINT INCOME), OR EACH PARTNER
MUST PROVIDE A
COMPLETED INDIVIDUAL INVESTOR QUESTIONNAIRE (PAGES A_1 TO
A_5).
|
II.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, the undersigned certifies the
following:
(a)
|
that
the PARTNERSHIP’s purchase of the Common Stock will be solely for the
PARTNERSHIP’s own account and not for the account of any other
person;
|
(b)
|
that
the PARTNERSHIP’s name, address of principal office, place of formation
and taxpayer identification number as set forth in this Questionnaire
are
true, correct and complete; and
|
(c)
|
that
one of the following is true and correct (check
one):
|
[ ] (i) the
PARTNERSHIP is a partnership formed in or under the laws of the United
States or
any political subdivision thereof.
[ ] (ii) the
PARTNERSHIP is not a partnership formed in or under the laws of the United
States or any political subdivision thereof.
III.
|
GENERAL
INFORMATION
|
(a)
|
PROSPECTIVE
PURCHASER (THE PARTNERSHIP)
|
Name:
|
|||
Principal
Place of Business:
|
|||
(Number
and Street)
|
|||
(City)
|
(State) (Zip
Code)
|
C-2
Address
for Correspondence (if different):
|
||||||||||||||
(Number
and Street)
|
||||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
||||||||||||
Telephone
Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
Facsimile
Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
State
in which Formed:
|
||||||||||||||
Date
of Formation:
|
||||||||||||||
Taxpayer
Identification Number:
|
||||||||||||||
Number
of Partners:
|
||||||||||||||
E-mail
Address:
|
||||||||||||||
NASD
Affiliation or Association of the PARTNERSHIP, if any:
|
||||||||||||||
If
none, check
here [ ]
|
(b)
|
INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
PARTNERSHIP
|
Name:
|
||
Position
or Title:
|
IV.
|
SIGNATURE
|
The
Signature Page to this Questionnaire is contained on page C-4, entitled
Partnership Signature Page.
C-3
PARTNERSHIP
SIGNATURE PAGE
________________________
MAGNETECH
INTEGRATED SERVICES CORP
________________________
1. The
undersigned PARTNERSHIP represents that (a) the information contained
in this
Questionnaire is complete and accurate and (b) the PARTNERSHIP will notify
Xxxxxx Xxxx, at 000-000-0000 immediately if any material change in any
of this
information occurs before the acceptance of the undersigned PARTNERSHIP’s
subscription and will promptly send Xxxxxx Xxxx written confirmation
of such
change.
2. The
undersigned PARTNERSHIP hereby represents and warrants that the person
signing
this Questionnaire and the Stock Purchase Agreement on behalf of the
PARTNERSHIP
is a general partner of the PARTNERSHIP, has been duly authorized by
the
PARTNERSHIP to acquire the Common Stock and sign the Stock Purchase Agreement
on
behalf of the PARTNERSHIP and, further, that the undersigned PARTNERSHIP
has all
requisite authority to purchase such Common Stock and enter into the
Stock
Purchase Agreement.
Dollar
Amount of Common Stock Applied For
|
Date
|
||||
Name
of Partnership
|
|||||
(Please
Type or Print)
|
|||||
By:
|
|||||
(Signature)
|
|||||
Name:
|
|||||
(Please
Type or Print)
|
|||||
Title:
|
|||||
(Please
Type or Print)
|
THE
SECURITIES COMPRISING THE COMMON STOCK HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OR 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
C-4
IMPORTANT:
|
Investor
Name: ___________
|
Please
Complete
|
CORPORATION
QUESTIONNAIRE
______________________
MAGNETECH
INTEGRATED SERVICES CORP
______________________
Magnetech
Integrated Services Corp
0000
X.
Xxxxxx Xx.
Xxxxx
Xxxx, Xxxxxxx 00000
The
information contained in this Questionnaire is being furnished in order
to
determine whether the undersigned CORPORATION’s subscription to purchase shares
of Common Stock (the “Common Stock”) of Magnetech Integrated Services Corp (the
“Company”) may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Xxxxxxxxxxxx Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000
if you have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned CORPORATION understands, however, that the Company may present
this
Questionnaire to such parties as it deems appropriate if called upon
to
establish that the proposed offer and sale of the Common Stock is exempt
from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned CORPORATION understands that the offering is required to
be reported
to the Securities and Exchange Commission and to various state securities
or
“blue sky” regulators.
I.
|
PLEASE
CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLY TO THE
CORPORATION.
|
[ ]
|
1.
|
Each
of the shareholders of the undersigned CORPORATION is able
to certify that
such shareholder meets at least one of the following two
conditions:
|
|
(a)
|
The
shareholder is a natural person whose individual net worth*
or joint net
worth with his or her spouse exceeds $1,000,000;
or
|
________________________
*For
purposes of this Questionnaire, the term "net worth" means the excess
of total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt
income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term
capital
gains has been reduced in arriving at adjusted gross income.
D-1
(b)
|
The
shareholder is a natural person who had an individual income*
in
excess of $200,000 in each of the previous two years and who
reasonably
expects an individual income in excess of $200,000 for this
year.
|
||
[ ]
|
2.
|
Each
of the shareholders of the undersigned CORPORATION is able
to certify that
such shareholder is a natural person who, together with his
or her spouse,
has had a joint income*
in
excess of $300,000 in each of the previous two years and who
reasonably
expects a joint income in excess of $300,000 for this
year.
|
|
[ ]
|
3.
|
The
undersigned CORPORATION: (a) was not formed for the specific
purpose of
acquiring any Common Stock; and
(b) has total assets in excess of
$5,000,000.
|
IF
YOU CHECKED STATEMENT 1 OR STATEMENT 2 IN SECTION 1 AND DID
NOT CHECK
STATEMENT 3, YOU MUST PROVIDE A LETTER SIGNED BY AN OFFICER
OF THE
UNDERSIGNED CORPORATION LISTING THE NAME OF EACH SHAREHOLDER
AND THE
REASON (UNDER STATEMENT 1 OR STATEMENT 2) WHY SUCH SHAREHOLDER
QUALIFIES
AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL
INCOME OR
JOINT INCOME), OR EACH SHAREHOLDER MUST PROVIDE A COMPLETED
INDIVIDUAL
INVESTOR QUESTIONNAIRE (PAGES A_1 TO
A_5).
|
II.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, the undersigned certifies the
following:
(a)
|
that
the CORPORATION’s purchase of the Common Stock will be solely for the
CORPORATION’s own account and not for the account of any other person or
entity;
|
(b)
|
that
the CORPORATION’s name, address of principal office, place of
incorporation and taxpayer identification number as set forth
in this
Questionnaire are true, correct and complete;
and
|
(c)
|
that
one of the following is true and correct (check
one):
|
[ ]
|
(i)
|
the
CORPORATION is a corporation organized in or under the laws
of the United
States or any political subdivision thereof.
|
|
[ ]
|
(ii)
|
the
CORPORATION is a corporation which is neither created nor organized
in or
under the United States or any political subdivision thereof,
but which
has made an election under either Section 897(i) or 897(k)
of the United
States Internal Revenue Code of 1986, as amended, to be treated
as a
domestic corporation for certain purposes of United States
federal income
taxation (A
COPY OF THE INTERNAL REVENUE SERVICE ACKNOWLEDGMENT OF THE
UNDERSIGNED’S
ELECTION MUST BE ATTACHED TO THIS STOCK PURCHASE AGREEMENT
IF THIS
PROVISION IS APPLICABLE).
|
D-2
[ ]
|
(iii)
|
neither
(i) nor (ii) above is true.
|
III.
|
GENERAL
INFORMATION
|
(a)
|
PROSPECTIVE
PURCHASER (THE CORPORATION)
|
Name:
|
|||||||||||||||
Principal
Place of Business:
|
|||||||||||||||
(Number
and Street)
|
|||||||||||||||
(City)
|
(State) (Zip
Code)
|
||||||||||||||
Address
for Correspondence (if different):
|
|||||||||||||||
(Number
and Street)
|
|||||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
|||||||||||||
Telephone
Number:
|
|||||||||||||||
(Area
Code)
|
(Number)
|
||||||||||||||
Facsimile
Number:
|
|||||||||||||||
(Area
Code)
|
(Number)
|
||||||||||||||
State
of Incorporation:
|
|||||||||||||||
Date
of Formation:
|
|||||||||||||||
Taxpayer
Identification Number:
|
|||||||||||||||
Number
of Shareholders:
|
|||||||||||||||
NASD
Affiliation or Association of the PARTNERSHIP, if any:
|
|||||||||||||||
If
none, check
here [ ]
|
(b)
|
INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
CORPORATION
|
Name:
|
|
Position
or Title:
|
|
Email
Address:
|
IV.
|
SIGNATURE
|
The
Signature Page to this Questionnaire is contained on page D-4, entitled
Corporation Signature Page.
D-3
CORPORATION
SIGNATURE PAGE
_________________________
MAGNETECH
INTEGRATED SERVICES CORP
________________________
1. The
undersigned CORPORATION represents that (a) the information contained
in this
Questionnaire is complete and accurate and (b) the CORPORATION will notify
Xxxxxx Xxxx, at 000-000-0000 immediately if any material change in any
of the
information occurs prior to the acceptance of the undersigned CORPORATION’s
subscription and will promptly send Xxxxxx Xxxx written confirmation
of such
change.
2. The
undersigned CORPORATION hereby represents and warrants that the person
signing
this Questionnaire on behalf of the CORPORATION has been duly authorized
by all
requisite action on the part of the CORPORATION to acquire the Common
Stock and
sign this Questionnaire and the Stock Purchase Agreement on behalf of
the
CORPORATION and, further, that the undersigned CORPORATION has all requisite
authority to purchase the Common Stock and enter into the Stock Purchase
Agreement.
Dollar
Amount of Common Stock Applied For
|
Date
|
||||
Name
of Corporation
|
|||||
(Please
Type or Print)
|
|||||
By:
|
|||||
(Signature)
|
|||||
Name:
|
|||||
(Please
Type or Print)
|
|||||
Title:
|
|||||
(Please
Type or Print)
|
THE
SECURITIES COMPRISING THE COMMON STOCK HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
D-4
IMPORTANT:
|
Investor
Name: ___________________
|
Please
Complete
|
RETIREMENT
PLAN QUESTIONNAIRE
___________________________
MAGNETECH
INTEGRATED SERVICES CORP
__________________________
Magnetech
Integrated Services Corp
0000
X.
Xxxxxx Xx.
Xxxxx
Xxxx, Xxxxxxx 00000
The
information contained in this Questionnaire is being furnished in order
to
determine whether the undersigned RETIREMENT PLAN’s subscription to purchase
shares of Common Stock (the “Common Stock”) of Magnetech Integrated Services
Corp (the “Company”) may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Xxxxxxxxxxxx Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000
if you have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned RETIREMENT PLAN understands, however, that the Company may
present
this Questionnaire to such parties as it deems appropriate if called
upon to
establish that the proposed offer and sale of the Common Stock is exempt
from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned RETIREMENT PLAN understands that the offering is required
to be
reported to the Securities and Exchange Commission and to various state
securities or “blue sky” regulators.
I.
|
PLEASE
CHECK ANY OF THE FOLLOWING STATEMENTS, AS
APPLICABLE.
|
[ ]
1.
|
The
undersigned RETIREMENT PLAN certifies that it is an employee
benefit plan
within the meaning of the Employee Retirement Income Security
Act of 1974
(“ERISA”) and:
|
[ ]
(a)
|
the
investment decisions are made by a plan fiduciary as defined
in Section
3(21) of ERISA that (i) is either a bank, insurance company
or registered
investment advisor or (ii) is a savings and loan association;
or
|
[ ]
(b)
|
The
undersigned RETIREMENT PLAN has total assets in excess of $5,000,000;
or
|
E-1
[ ]
(c)
|
The
undersigned RETIREMENT PLAN is self-directed, with investment
decisions
made solely by persons each of whom satisfies at least one
of the
following conditions:
|
[ ]
|
(i)
|
such
person’s individual net worth* For
purposes of this Questionnaire, the term "net worth" means
the excess of
total assets over total liabilities. In determining income,
an investor
should add to his or her adjusted gross income any amounts
attributable to
tax-exempt income received, losses claimed as a limited partner
in any
limited partnership, deductions claimed for depletion, contributions
to
XXX or Xxxxx retirement plans, alimony payments and any amount
by which
income from long-term capital gains has been reduced in arriving
at
adjusted gross income.
or
joint net worth with his or her spouse exceeds $1,000,000;
or
|
[ ]
|
(ii)
|
such
person had an individual income*
in
excess of $200,000 in each of the previous two years and reasonably
expects an individual income in excess of $200,000 for this
year;
or
|
[ ]
|
(iii)
|
such
person together with his or her spouse, had a joint income*
in
excess of $300,000 in each of the previous two years and reasonably
expects a joint income in excess of $300,000 for this
year.
|
[ ]
2.
|
The
undersigned RETIREMENT PLAN certifies that it is an employee
benefit plan,
Xxxxx plan or Individual Retirement Account in which each participant
satisfies at least one of the following
conditions:
|
[ ]
(a)
|
such
person’s individual net worth* or joint net worth with his or her
spouse
exceeds $1,000,000; or
|
[ ]
(b)
|
such
person had an individual income* in excess of $200,000 in each
of the
previous two years and reasonably expects an individual income
in excess
of $200,000 for this year; or
|
[ ]
(c)
|
such
person, together with his or her spouse, had a joint income*
in excess of
$300,000 in each of the previous two years and reasonably expects
a joint
income in excess of $300,000 for this
year.
|
IF YOU CHECKED STATEMENT 1(c) OR STATEMENT 2 AND NOT STATEMENT 1(a) OR STATEMENT 1(b), YOU MUST PROVIDE A LETTER SIGNED BY A PERSON DULY AUTHORIZED BY THE RETIREMENT PLAN LISTING, AS APPLICABLE (I) THE NAMES OF THE PERSONS (OR ENTITIES) MAKING THE INVESTMENT DECISIONS, OR (II) THE NAMES OF ALL OF THE PARTICIPANTS IN THE PLAN AND THE REASON (UNDER STATEMENT 1(c) OR STATEMENT 2) SUCH PERSON (OR ENTITY), QUALIFIES AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL INCOME, JOINT INCOME OR OTHERWISE), OR EACH SUCH PERSON (OR ENTITY) MUST COMPLETE THE APPROPRIATE QUESTIONNAIRE (i.e. FOR AN INDIVIDUAL, TRUST, PARTNERSHIP OR CORPORATION). |
____________________
*For
purposes of this Questionnaire, the term "net worth" means the excess
of total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt
income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term
capital
gains has been reduced in arriving at adjusted gross income.
E-2
II.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, the undersigned certifies the
following:
(a)
|
that
the RETIREMENT PLAN’s purchase of the Common Stock will be solely for the
RETIREMENT PLAN’s own account and not for the account of any other person
or entity;
|
(b)
|
that
the RETIREMENT PLAN’s governing documents duly authorize the type of
investment contemplated herein, and the undersigned is authorized
and
empowered to make such investment on behalf of the RETIREMENT
PLAN.
|
(c)
|
that
one of the following is true and correct (check
one):
|
[ ]
(i)
|
the
RETIREMENT PLAN is a retirement plan whose income from sources
outside of
the United States is includable in its gross income for United
States
federal tax purposes regardless of its connection with a trade
or business
carried on in the United States.
|
[ ]
(ii)
|
the
RETIREMENT PLAN is a retirement plan whose income from sources
outside the
United States is not includable in its gross income for United
States
federal income tax purposes regardless of its connection with
a trade or
business carried on in the United
States.
|
III.
|
GENERAL
INFORMATION
|
(a)
|
PROSPECTIVE
PURCHASER (THE RETIREMENT PLAN)
|
Name:
|
|||||||||||||
Address:
|
|||||||||||||
(Number
and Street)
|
|||||||||||||
(City)
|
(State) (Zip
Code)
|
||||||||||||
Address
for Correspondence (if different):
|
|||||||||||||
(Number
and Street)
|
|||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
|||||||||||
Telephone
Number:
|
|||||||||||||
(Area
Code)
|
(Number)
|
E-3
Facsimile
Number:
|
||||||||
(Area
Code)
|
(Number)
|
|||||||
State
in which Formed:
|
||||||||
Date
of Formation:
|
||||||||
Taxpayer
Identification Number:
|
(b)
|
INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE RETIREMENT
PLAN
|
Name:
|
|
Position
or Title:
|
|
Email
Address:
|
IV.
|
ADDITIONAL
INFORMATION
|
THE RETIREMENT PLAN MUST ATTACH COPIES OF ALL DOCUMENTS GOVERNING THE PLAN AS WELL AS ALL OTHER DOCUMENTS AUTHORIZING THE RETIREMENT PLAN TO INVEST IN THE COMMON STOCK. INCLUDE, AS NECESSARY, DOCUMENTS DEFINING PERMITTED INVESTMENTS BY THE RETIREMENT PLAN, AND DEMONSTRATING AUTHORITY OF THE SIGNING INDIVIDUAL TO ACT ON BEHALF OF THE PLAN. ALL DOCUMENTATION MUST BE COMPLETE AND CORRECT. |
V.
|
SIGNATURE
|
The
Signature Page to this Questionnaire is contained on page E-5, entitled
Retirement Plan Signature Page.
E-4
RETIREMENT
PLAN SIGNATURE PAGE
_________________________
MAGNETECH
INTEGRATED SERVICES CORP
________________________
1. The
undersigned RETIREMENT PLAN represents that (a) the information contained
in
this Questionnaire is complete and accurate and (b) the RETIREMENT PLAN
will
notify Xxxxxx Xxxx, at 000-000-0000 immediately if any material change
in any of
the information occurs prior to the acceptance of the undersigned RETIREMENT
PLAN’s subscription and will promptly send Xxxxxx Xxxx written confirmation
of
such change.
2. The
undersigned RETIREMENT PLAN hereby represents and warrants that the person
signing this Questionnaire on behalf of the RETIREMENT PLAN has been
duly
authorized to acquire the Common Stock and sign this Questionnaire and
the Stock
Purchase Agreement on behalf of the RETIREMENT PLAN and, further, that
the
undersigned RETIREMENT PLAN has all requisite authority to purchase the
Common
Stock and enter into the Stock Purchase Agreement.
Dollar
Amount of Common Stock Applied For
|
Date
|
||||
Name
of Retirement Plan
|
|||||
(Please
Type or Print)
|
|||||
By:
|
|||||
(Signature)
|
|||||
Name:
|
|||||
(Please
Type or Print)
|
|||||
Title:
|
|||||
(Please
Type or Print)
|
THE
SECURITIES COMPRISING THE COMMON STOCK HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
E-5
IMPORTANT:
|
Investor
Name: ___________________
|
Please
Complete
|
LIMITED
LIABILITY COMPANY QUESTIONNAIRE
______________________
MAGNETECH
INTEGRATED SERVICES CORP
______________________
Magnetech
Integrated Services Corp
0000
X.
Xxxxxx Xx.
Xxxxx
Xxxx, Xxxxxxx 00000
The
information contained in this Questionnaire is being furnished in order
to
determine whether the undersigned LIMITED LIABILITY COMPANY’s subscription to
purchase shares of Common Stock (the “Common Stock”) of Magnetech Integrated
Services Corp (the “Company”) may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Xxxxxxxxxxxx Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000
if you have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned LIMITED LIABILITY COMPANY understands, however, that the
Company may
present this Questionnaire to such parties as it deems appropriate if
called
upon to establish that the proposed offer and sale of the Common Stock
is exempt
from registration under the Securities Act of 1933, as amended, or meets
the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned LIMITED LIABILITY COMPANY understands that the offering is
required
to be reported to the Securities and Exchange Commission and to various
state
securities or “blue sky” regulators.
I.
|
PLEASE
CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLY TO THE LIMITED
LIABILITY
COMPANY.
|
[ ]
1.
|
Each
of the members of the undersigned LIMITED LIABILITY COMPANY
is able to
certify that such member meets at least one of the following
two
conditions:
|
(a)
|
The
member is a natural person whose individual net worth* or
joint net worth with his or her spouse exceeds $1,000,000;
or
|
____________________
*For
purposes of this Questionnaire, the term "net worth" means the excess
of total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt
income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term
capital
gains has been reduced in arriving at adjusted gross income.
F-1
(b)
|
The
member is a natural person who had an individual income*
in
excess of $200,000 in each of the previous two years and who
reasonably
expects an individual income in excess of $200,000 for this
year.
|
[ ]
2.
|
Each
of the members of the undersigned LIMITED LIABILITY COMPANY
is able to
certify that such member is a natural person who, together
with his or her
spouse, has had a joint income*
in
excess of $300,000 in each of the previous two years and who
reasonably
expects a joint income in excess of $300,000 for this
year.
|
[ ]
3.
|
The
undersigned LIMITED LIABILITY COMPANY: (a) was not formed for
the specific
purpose of acquiring any Common Stock; and
(b) has total assets in excess of
$5,000,000.
|
[ ]
4.
|
The
sole member of the undersigned LIMITED LIABILITY COMPANY is
able to
certify that such member is an entity which (a) was not formed
for the
specific purpose of acquiring any Common Stock; and
(b) has total assets in excess of
$5,000,000.
|
IF YOU CHECKED STATEMENT 1 OR STATEMENT 2 IN SECTION 1 AND DID NOT CHECK STATEMENT 3, YOU MUST PROVIDE A LETTER SIGNED BY A MANAGER OF THE UNDERSIGNED LIMITED LIABILITY COMPANY LISTING THE NAME OF EACH MEMBER AND THE REASON (UNDER STATEMENT 1 OR STATEMENT 2) WHY SUCH MEMBER QUALIFIES AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL INCOME OR JOINT INCOME), OR EACH MEMBER MUST PROVIDE A COMPLETED INDIVIDUAL INVESTOR QUESTIONNAIRE (PAGES A-1 TO A-5). |
II.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, the undersigned certifies the
following:
(a)
|
that
the LIMITED LIABILITY COMPANY’s purchase of the Common Stock will be
solely for the LIMITED LIABILITY COMPANY’s own account and not for the
account of any other person or
entity;
|
(b)
|
that
the LIMITED LIABILITY COMPANY’s name, address of principal office, place
of incorporation and taxpayer identification number as set
forth in this
Questionnaire are true, correct and complete;
and
|
(c)
|
that
one of the following is true and correct (check
one):
|
[ ]
(i)
|
the
LIMITED LIABILITY COMPANY is organized in or under the laws
of the United
States or any political subdivision
thereof.
|
F-2
[ ]
(ii)
|
the
LIMITED LIABILITY COMPANY is neither created nor organized
in or under the
United States or any political subdivision
thereof.
|
F-3
III.
|
GENERAL
INFORMATION
|
(a)
|
PROSPECTIVE
PURCHASER (THE LIMITED LIABILITY
COMPANY)
|
Name:
|
|||||||||||||||
Principal
Place of Business:
|
|||||||||||||||
(Number
and Street)
|
|||||||||||||||
(City)
|
(State) (Zip
Code)
|
||||||||||||||
Address
for Correspondence (if different):
|
|||||||||||||||
(Number
and Street)
|
|||||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
|||||||||||||
Telephone
Number:
|
|||||||||||||||
(Area
Code)
|
(Number)
|
||||||||||||||
Facsimile
Number:
|
|||||||||||||||
(Area
Code)
|
(Number)
|
||||||||||||||
E-mail
Address:
|
|||||||||||||||
State
of Formation:
|
|||||||||||||||
Date
of Formation:
|
|||||||||||||||
Taxpayer
Identification Number:
|
|||||||||||||||
Number
of Members:
|
|||||||||||||||
NASD
Affiliation or Association of the PARTNERSHIP, if any:
|
|||||||||||||||
If
none, check
here [ ]
|
(b)
|
INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE LIMITED
LIABILITY
COMPANY
|
Name:
|
|
Position
or Title:
|
IV.
|
SIGNATURE
|
The
Signature Page to this Questionnaire is contained on page F-4, entitled
LIMITED
LIABILITY COMPANY Signature Page.
F-4
LIMITED
LIABILITY COMPANY SIGNATURE PAGE
_________________________
MAGNETECH
INTEGRATED SERVICES CORP
________________________
1. The
undersigned LIMITED LIABILITY COMPANY represents that (a) the information
contained in this Questionnaire is complete and accurate and (b) the
LIMITED
LIABILITY COMPANY will notify Xxxxxx Xxxx, at 000-000-0000 immediately
if any
material change in any of the information occurs prior to the acceptance
of the
undersigned LIMITED LIABILITY COMPANY’s subscription and will promptly send
Xxxxxx Xxxx written confirmation of such change.
2. The
undersigned LIMITED LIABILITY COMPANY hereby represents and warrants
that the
person signing this Questionnaire on behalf of the LIMITED LIABILITY
COMPANY has
been duly authorized by all requisite action on the part of the LIMITED
LIABILITY COMPANY to acquire the Common Stock and sign this Questionnaire
and
the Stock Purchase Agreement on behalf of the LIMITED LIABILITY COMPANY
and,
further, that the undersigned LIMITED LIABILITY COMPANY has all requisite
authority to purchase the Common Stock and enter into the Stock Purchase
Agreement.
Dollar
Amount of Common Stock Applied For
|
Date
|
||||
Name
of LIMITED LIABILITY COMPANY
|
|||||
(Please
Type or Print)
|
|||||
By:
|
|||||
(Signature)
|
|||||
Name:
|
|||||
(Please
Type or Print)
|
|||||
Title:
|
|||||
(Please
Type or Print)
|
THE
SECURITIES COMPRISING THE COMMON STOCK HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
F-5
IMPORTANT:
|
Investor
Name: ____________________
|
Please
Complete
|
INDIVIDUAL
INVESTOR QUESTIONNAIRE
_________________________
MAGNETECH
INTEGRATED SERVICES CORP
__________________________
Magnetech
Integrated Services Corp
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxx
Xxxx, Xxxxxxx 00000
The
information contained in this Questionnaire is being furnished in order to
determine whether the undersigned’s subscription to purchase Debentures and
Warrants(the “Securities”) of Magnetech Integrated Services Corp. (the
“Company”) may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Xxxxxxxxxxxx Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000 if you
have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned understands, however, that the Company may present this
Questionnaire to such parties as it deems appropriate if called upon to
establish that the proposed offer and sale of the is exempt from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned understands that the offering is required to be reported to the
Securities and Exchange Commission and to various state securities or “blue sky”
regulators.
IF
YOU ARE PURCHASING SECURITIES WITH YOUR SPOUSE, YOU MUST
BOTH SIGN
THE SIGNATURE PAGE (PAGE A_5).
|
IF
YOU ARE PURCHASING SECURITIES WITH ANOTHER PERSON NOT YOUR
SPOUSE,
YOU MUST EACH FILL OUT A SEPARATE QUESTIONNAIRE.
Please make a photocopy of pages A_1 to A_5 and return both completed
Questionnaires to the Placement Agent in the same
envelope.
|
I.
|
PLEASE
INDICATE DESIRED TYPE OF OWNERSHIP OF
SECURITIES:
|
[ ] Individual
[ ] Joint
Tenants (rights of survivorship)
[ ] Tenants
in Common (no rights of survivorship)
A-1
II.
|
PLEASE
CHECK ANY OF STATEMENTS 1-4 BELOW THAT APPLY TO
YOU.
|
[ ]
|
1.
|
I
have an individual net worth*
or
joint net worth with my spouse in excess of $1,000,000.
|
[ ]
|
2.
|
I
have had an individual income*
in
excess of $200,000 in each of the previous two years and I reasonably
expect an individual income in excess of $200,000 for this year.
NOTE: IF
YOU ARE BUYING JOINTLY WITH YOUR SPOUSE, YOU MUST EACH HAVE AN
INDIVIDUAL
INCOME IN EXCESS OF $200,000 IN EACH OF THESE YEARS IN ORDER TO
CHECK THIS
BOX.
|
[ ]
|
3.
|
My
spouse and I have had a joint income*
in
excess of $300,000 in each of the previous two years and I reasonably
expect a joint income in excess of $300,000 for this
year.
|
[ ]
|
4.
|
I
am a director and/or an executive officer of the Company as such
terms are
defined in Regulation D promulgated under the Securities Act of
1933, as
amended.
|
III.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, I certify the following (or, if I am purchasing
Securities with my spouse as co-owner, each of us certifies the
following):
(a)
|
that
I am at least 21 years of age;
|
(b)
|
that
my purchase of Securities will be solely for my own account
and not
for the account of any other person (other than my spouse, if
co-owner);
|
(c)
|
that
the name, home address and social security number or taxpayer
identification number as set forth in this Questionnaire are true,
correct
and complete; and
|
(d)
|
that
one of the following is true and correct (check
one):
|
__________________
*For
purposes of this Questionnaire, the term "net worth" means the excess of
total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term capital
gains has been reduced in arriving at adjusted gross income.
A-2
Purchaser
|
Spouse,
if Co-Owner
|
||
[ ]
|
[ ]
|
I
am a United States citizen or resident of the United States for
United
States federal income tax purposes.
|
|
[ ]
|
[ ]
|
I
am neither a United States citizen nor a resident of the United
States for
United States federal income tax
purposes.
|
IV.
|
GENERAL
INFORMATION
|
(a)
|
PERSONAL
INFORMATION
|
Purchaser
|
||||||||||||||
Name:
|
||||||||||||||
Social
Security or Taxpayer Identification Number:
|
||||||||||||||
Residence
Address:
|
||||||||||||||
(Number
and Street)
|
||||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
||||||||||||
Residence
Telephone Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
Residence
Facsimile Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
Name
of Business:
|
||||||||||||||
Business
Address:
|
||||||||||||||
(Number
and Street)
|
||||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
||||||||||||
Business
Telephone Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
Business
Facsimile Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
I
prefer to have correspondence sent to:
|
[ ] Residence
|
[ ] Business
|
A-3
E-mail
Address:
|
||
NASD
Affiliation or Association, if any:
|
||
If
none, check here
|
[ ]
|
Spouse,
if Co-Owner
|
||||||||||||
Name:
|
||||||||||||
Social
Security or Taxpayer Identification Number:
|
||||||||||||
Residence
Address (if different from Purchaser’s):
|
||||||||||||
(Number
and Street)
|
||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
||||||||||
Residence
Telephone Number Address (if different from Purchaser’s):
|
||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||
Name
of Business Address (if different from Purchaser’s):
|
||||||||||||
Business
Address Address (if different from Purchaser’s):
|
||||||||||||
(Number
and Street)
|
||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
||||||||||
Business
Telephone Number Address (if different from Purchaser’s):
|
||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||
I
prefer to have correspondence sent to:
|
[ ] Residence
|
[ ] Business
|
||||||||||
NASD
Affiliation or Association, if any:
|
||||||||||||
If
none, check here
|
[ ]
|
V. SIGNATURE
The
Signature Page to this Questionnaire is contained on page A-5, entitled
Individual Signature Page.
A-4
INDIVIDUAL
SIGNATURE PAGE
_____________________________
MAGNETECH
INTEGRATED SERVICES CORP
_____________________________
The
undersigned represents that (a) the information contained in this Questionnaire
is complete and accurate and (b) he/she will telephone Xxxxxx Xxxx at
000-000-0000 immediately if any material change in any of this information
occurs before the acceptance of his/her subscription and will promptly send
Xxxxxx Xxxx confirmation of such change.
Dollar
Amount of Securities Applied For
|
Date
|
||
|
|
|
|
|
|
Name
(Please Type or Print)
|
|
|
|
|
|
|
|
Signature
|
|
|
|
|
|
|
|
Name
of Spouse if Co-Owner
|
|
|
|
(Please
Type or Print)
|
|
|
|
|
|
|
|
Signature
of Spouse if Co-Owner
|
|
|
|
|
|
|
IF
YOU ARE PURCHASING SECURITIES WITH YOUR SPOUSE, YOU MUST BOTH
SIGN THIS
SIGNATURE PAGE (PAGE A-5).
|
IF
YOU ARE PURCHASING SECURITIES WITH ANOTHER PERSON NOT YOUR SPOUSE,
YOU
MUST EACH FILL OUT A SEPARATE QUESTIONNAIRE. Please
make a photocopy of pages A-1 to A-5 and return both completed
Questionnaires to the Placement Agent in the same
envelope.
|
THE
SECURITIES COMPRISING THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
A-5
IMPORTANT:
|
Investor
Name: ________________________
|
Please
Complete
|
TRUST
QUESTIONNAIRE
__________________________
MAGNETECH
INTEGRATED SERVICES CORP.
_________________________
Magnetech
Integrated Services Corp
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxx
Xxxx, Xxxxxxx 00000
The
information contained in this Questionnaire is being furnished in order to
determine whether the undersigned TRUST’s subscription to purchase shares of
Debentures and Warrants (the “Securities”) of Magnetech Integrated
Services Corp (the “Company”) may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Xxxxxxxxxxxx Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000 if you
have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned TRUST understands, however, that the Company may present this
Questionnaire to such parties as it deems appropriate if called upon to
establish that the proposed offer and sale of the Securities is exempt from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned TRUST understands that the offering is required to be reported
to
the Securities and Exchange Commission and to various state securities or
“blue
sky” regulators.
NOTE:
RETIREMENT PLANS SHOULD COMPLETE THE QUESTIONNAIRE ON PAGES E-1
to
E-5.
|
I. PLEASE
CHECK STATEMENTS 1 AND 2 BELOW, AS APPLICABLE.
[ ]
|
1.
|
(a)
|
the
TRUST has total assets in excess of $5,000,000; and
|
|
(b)
|
the
TRUST was not formed for the specific purpose of acquiring the
Securities;
and
|
|||
(c)
|
the
purchase by the TRUST is directed by a person who has such knowledge
and
experience in financial and business matters that he/she is capable
of
evaluating the merits and risks of an investment in the
Securities.
|
B-1
[ ]
|
2.
|
The
grantor of the TRUST may revoke the TRUST at any time; the grantor
retains
sole investment control over the assets of the trust and
|
|||
(a)
|
the
grantor is a natural person whose individual net worth* or joint
net worth
with the grantor’s spouse exceeds $1,000,000; or
|
||||
(b)
|
the
grantor is a natural person who had an individual income*
in
excess of $200,000 in each of the previous two years and who reasonably
expects an individual income in excess of $200,000 for this year;
or
|
||||
(c)
|
the
grantor is a natural person who, together with his or her spouse,
has had
a joint income*
in
excess of $300,000 in each of the previous two years and who reasonably
expects a joint income in excess of $300,000 for this
year.
|
||||
IF
YOU CHECKED STATEMENT 2 IN SECTION I AND DID NOT CHECK STATEMENT
1, THE
TRUST MUST PROVIDE A COMPLETED INDIVIDUAL INVESTOR QUESTIONNAIRE
(PAGES
A-1 TO A-5) FOR EACH
GRANTOR.
|
II.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, the undersigned certifies the
following:
(a)
|
that
the TRUST’s purchase of the Securities will be solely for the TRUST’s own
account and not for the account of any other person;
|
|
(b)
|
that
the TRUST’s purchase of the Securities is within the investment powers and
authority of the TRUST (as set forth in the declaration of trust
or other
governing instrument) and that all necessary consents, approvals
and
authorizations for such purchase have been obtained and that each
person
who signs the Signature Page has all requisite power and authority
as
trustee to execute this Questionnaire and the Purchase Agreement
on behalf
of the TRUST;
|
|
(c)
|
that
the TRUST has not been established in connection with either (i)
an
employee benefit plan (as defined in Section 3(3) of ERISA), whether
or
not subject to the provisions of Title I of ERISA, or (ii) a plan
described in Section 4975(e)(i) of the Internal Revenue
Code;
|
|
(d)
|
that
the TRUST’s name, address of principal office, place of formation and
taxpayer identification number as set forth in this Questionnaire
are
true, correct and complete; and
|
|
(e)
|
that
one of the following is true and correct (check
one):
|
________________________
*For
purposes of this Questionnaire, the term "net worth" means the excess of
total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term capital
gains has been reduced in arriving at adjusted gross income.
B-2
[ ]
|
(i)
|
the
TRUST is an estate or trust whose income from sources outside of
the
United States is includable in its gross income for United States
federal
tax purposes regardless of its connection with a trade or business
carried
on in the United States.
|
|
[ ]
|
(ii)
|
the
TRUST is an estate or trust whose income from sources outside the
United
States is not includable in its gross income for United States
federal
income taxes purposes regardless of its connection with a trade
or
business carried on in the United
States.
|
III.
|
GENERAL
INFORMATION
|
(a)
|
PROSPECTIVE
PURCHASER (THE TRUST)
|
Name:
|
|||||
Address:
|
|||||
(Number
and Street)
|
|||||
(City)
|
(State)
|
(Zip
Code)
|
|||
Address
for Correspondence (if different):
|
|||||
(Number
and Street)
|
|||||
(City)
|
(State)
|
(Zip
Code)
|
|||
Telephone
Number:
|
|||||
(Area
Code)
|
(Number)
|
||||
State
in which Formed:
|
|||||
Date
of Formation:
|
|||||
Taxpayer
Identification Number:
|
(b)
|
TRUSTEES
WHO ARE EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
TRUST
|
Name(s)
of Trustee(s):
|
|||
E-mail
Address:
|
|||
NASD
Affiliation or Association of Trustee(s), if any:
|
|||
If
none, check here
|
[ ]
|
B-3
IV.
|
ADDITIONAL
INFORMATION
|
A
TRUST
must attach a copy of its declaration of trust or other governing instrument,
as
amended, as well as all other documents that authorize the TRUST to invest
in
the Securities. All documentation must be complete and correct.
V.
|
SIGNATURE
|
The
Signature Page to this Questionnaire is contained on page B-5, entitled Trust
Signature Page.
B-4
TRUST
SIGNATURE PAGE
_______________________
MAGNETECH
INTEGRATED SERVICES CORP.
________________________
1. The
undersigned represents that (a) the information contained in this Questionnaire
is complete and accurate and (b) the TRUST will notify Xxxxxx Xxxx, at
000-000-0000 immediately if any material change in any of this information
occurs before the acceptance of the TRUST’s subscription and will promptly send
Xxxxxx Xxxx written confirmation of such change.
2. The
undersigned TRUST hereby represents and warrants that the persons signing
this
Questionnaire on behalf of the TRUST are duly authorized to acquire the
Securities and sign this Questionnaire and the Purchase Agreement on behalf
of
the TRUST and, further, that the undersigned TRUST has all requisite authority
to purchase such Securities and enter into the Purchase Agreement.
Dollar
Amount of Securities Applied For
|
Date
|
|
Title
of Trust
|
|
|
(Please
Type or Print)
|
||
By:
|
||
Signature
of Trustee
|
||
Name
of Trustee:
|
||
(Please
Type or Print)
|
||
By:
|
||
Signature
of Co-Trustee
|
||
Name
of Co-Trustee:
|
||
(Please
Type or Print)
|
THE
SECURITIES COMPRISING THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
B-5
IMPORTANT:
|
Investor
Name:_________________
|
Please
Complete
|
PARTNERSHIP
QUESTIONNAIRE
________________________
MAGNETECH
INTEGRATED SERVICES CORP
________________________
Magnetech
Integrated Services Corp
0000
Xxxxx X Xxxxxx Xxxxxxxx Xxx
Xxxxx
000
Xxxxxxx, Xxxxx
00000
The
information contained in this Questionnaire is being furnished in order to
determine whether the undersigned PARTNERSHIP’s subscription to purchase
shares Debentures amd Warramts (the “Securities”) of Magnetech
Integrated Services Corp (the “Company”) may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Xxxxxxxxxxxx Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000 if you
have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned PARTNERSHIP understands, however, that the Company may present
this
Questionnaire to such parties as it deems appropriate if called upon to
establish that the proposed offer and sale of the Securities is exempt from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned PARTNERSHIP understands that the offering is required to be reported
to the Securities and Exchange Commission and to various state securities
or
“blue sky” regulators.
I.
|
PLEASE
CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLY TO THE
PARTNERSHIP.
|
[ ]
|
1.
|
Each
of the partners of the undersigned PARTNERSHIP is able to certify
that
such partner meets at least one of the following
conditions:
|
|
(a)
|
The
partner is a natural person whose individual net worth* or
joint net worth with his or her spouse exceeds
$1,000,000.
|
________________________
*For
purposes of this Questionnaire, the term "net worth" means the excess of
total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term capital
gains has been reduced in arriving at adjusted gross income.
C-1
(b)
|
|
The
partner is a natural person whose individual income*
was in excess of $200,000 in each of the previous two years and
who
reasonably expects an individual income in excess of $200,000 for
this
year.
|
|
[ ]
|
2.
|
Each
of the partners of the undersigned PARTNERSHIP is able to certify
that
such partner is a natural person who, together with his or her
spouse, has
had a joint income*
in
excess of $300,000 in each of the previous two years and who reasonably
expects a joint income in excess of $300,000 for this
year.
|
|
[ ]
|
3.
|
The
undersigned PARTNERSHIP: (a) was not formed for the specific purpose
of
acquiring the Securities; and
(b) has total assets in excess of
$5,000,000.
|
IF
YOU CHECKED STATEMENT 1 OR STATEMENT 2 IN SECTION I AND DID NOT
CHECK
STATEMENT 3, YOU MUST PROVIDE A LETTER SIGNED BY A GENERAL PARTNER
OF THE
UNDERSIGNED PARTNERSHIP LISTING THE NAME OF EACH PARTNER (WHETHER
A
GENERAL OR LIMITED PARTNER) AND THE REASON (UNDER STATEMENT 1 OR
STATEMENT
2) SUCH PARTNER QUALIFIES AS AN ACCREDITED INVESTOR (ON THE BASIS
OF NET
WORTH, INDIVIDUAL INCOME OR JOINT INCOME), OR EACH PARTNER MUST
PROVIDE A
COMPLETED INDIVIDUAL INVESTOR QUESTIONNAIRE (PAGES A_1 TO
A_5).
|
II.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, the undersigned certifies the
following:
(a)
|
that
the PARTNERSHIP’s purchase of the Securities will be solely for the
PARTNERSHIP’s own account and not for the account of any other
person;
|
(b)
|
that
the PARTNERSHIP’s name, address of principal office, place of formation
and taxpayer identification number as set forth in this Questionnaire
are
true, correct and complete; and
|
(c)
|
that
one of the following is true and correct (check
one):
|
[ ] (i) the
PARTNERSHIP is a partnership formed in or under the laws of the United States
or
any political subdivision thereof.
[ ] (ii) the
PARTNERSHIP is not a partnership formed in or under the laws of the United
States or any political subdivision thereof.
C-2
III.
|
GENERAL
INFORMATION
|
(a)
|
PROSPECTIVE
PURCHASER (THE PARTNERSHIP)
|
Name:
|
|||
Principal
Place of Business:
|
|||
(Number
and Street)
|
|||
(City)
|
(State) (Zip
Code)
|
Address
for Correspondence (if different):
|
||||||||||||||
(Number
and Street)
|
||||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
||||||||||||
Telephone
Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
Facsimile
Number:
|
||||||||||||||
(Area
Code)
|
(Number)
|
|||||||||||||
State
in which Formed:
|
||||||||||||||
Date
of Formation:
|
||||||||||||||
Taxpayer
Identification Number:
|
||||||||||||||
Number
of Partners:
|
||||||||||||||
E-mail
Address:
|
||||||||||||||
NASD
Affiliation or Association of the PARTNERSHIP, if any:
|
||||||||||||||
If
none, check
here [ ]
|
(b)
|
INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
PARTNERSHIP
|
Name:
|
||
Position
or Title:
|
IV.
|
SIGNATURE
|
The
Signature Page to this Questionnaire is contained on page C-4, entitled
Partnership Signature Page.
C-3
PARTNERSHIP
SIGNATURE PAGE
________________________
MAGNETECH
INTEGRATED SERVICES CORP
________________________
1. The
undersigned PARTNERSHIP represents that (a) the information contained in
this
Questionnaire is complete and accurate and (b) the PARTNERSHIP will notify
Xxxxxx Xxxx, at 000-000-0000 immediately if any material change in any of
this
information occurs before the acceptance of the undersigned PARTNERSHIP’s
subscription and will promptly send Xxxxxx Xxxx written confirmation of such
change.
2. The
undersigned PARTNERSHIP hereby represents and warrants that the person signing
this Questionnaire and the Purchase Agreement on behalf of the PARTNERSHIP
is a
general partner of the PARTNERSHIP, has been duly authorized by the PARTNERSHIP
to acquire the Securities and sign the Purchase Agreement on behalf of the
PARTNERSHIP and, further, that the undersigned PARTNERSHIP has all requisite
authority to purchase such Securities and enter into the Purchase
Agreement.
Dollar
Amount of Securities Applied For
|
Date
|
||||
Name
of Partnership
|
|||||
(Please
Type or Print)
|
|||||
By:
|
|||||
(Signature)
|
|||||
Name:
|
|||||
(Please
Type or Print)
|
|||||
Title:
|
|||||
(Please
Type or Print)
|
THE
SECURITIES COMPRISING THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OR 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
C-4
IMPORTANT:
|
Investor
Name: ___________
|
Please
Complete
|
CORPORATION
QUESTIONNAIRE
______________________
MAGNETECH
INTEGRATED SERVICES CORP.
______________________
Magnetech
Integrated Services Corp.
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxx
Xxxx, Xxxxxxx 00000
The
information contained in this Questionnaire is being furnished in order to
determine whether the undersigned CORPORATION’s subscription to purchase
shares Debentures and Warrants (the “Securities”) of Magnetech
Integrated Services Corp (the “Company”) may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Xxxxxxxxxxxx Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000 if you
have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned CORPORATION understands, however, that the Company may present
this
Questionnaire to such parties as it deems appropriate if called upon to
establish that the proposed offer and sale of the Securities is exempt from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned CORPORATION understands that the offering is required to be reported
to the Securities and Exchange Commission and to various state securities
or
“blue sky” regulators.
I.
|
PLEASE
CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLY TO THE
CORPORATION.
|
[ ]
|
1.
|
Each
of the shareholders of the undersigned CORPORATION is able to certify
that
such shareholder meets at least one of the following two
conditions:
|
|
(a)
|
The
shareholder is a natural person whose individual net worth or joint
net
worth with his or her spouse exceeds $1,000,000;
or
|
________________________
*For
purposes of this Questionnaire, the term "net worth" means the excess of
total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term capital
gains has been reduced in arriving at adjusted gross income.
D-1
(b)
|
The
shareholder is a natural person who had an individual income*
in
excess of $200,000 in each of the previous two years and who reasonably
expects an individual income in excess of $200,000 for this
year.
|
||
[ ]
|
2.
|
Each
of the shareholders of the undersigned CORPORATION is able to certify
that
such shareholder is a natural person who, together with his or
her spouse,
has had a joint income*
in
excess of $300,000 in each of the previous two years and who reasonably
expects a joint income in excess of $300,000 for this
year.
|
|
[ ]
|
3.
|
The
undersigned CORPORATION: (a) was not formed for the specific purpose
of
acquiring any Securities; and
(b) has total assets in excess of
$5,000,000.
|
IF
YOU CHECKED STATEMENT 1 OR STATEMENT 2 IN SECTION 1 AND DID NOT
CHECK
STATEMENT 3, YOU MUST PROVIDE A LETTER SIGNED BY AN OFFICER OF
THE
UNDERSIGNED CORPORATION LISTING THE NAME OF EACH SHAREHOLDER AND
THE
REASON (UNDER STATEMENT 1 OR STATEMENT 2) WHY SUCH SHAREHOLDER
QUALIFIES
AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL
INCOME OR
JOINT INCOME), OR EACH SHAREHOLDER MUST PROVIDE A COMPLETED INDIVIDUAL
INVESTOR QUESTIONNAIRE (PAGES A_1 TO
A_5).
|
II.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, the undersigned certifies the
following:
(a)
|
that
the CORPORATION’s purchase of the Securities will be solely for the
CORPORATION’s own account and not for the account of any other person or
entity;
|
(b)
|
that
the CORPORATION’s name, address of principal office, place of
incorporation and taxpayer identification number as set forth in
this
Questionnaire are true, correct and complete;
and
|
(c)
|
that
one of the following is true and correct (check
one):
|
[ ]
|
(i)
|
the
CORPORATION is a corporation organized in or under the laws of
the United
States or any political subdivision thereof.
|
|
[ ]
|
(ii)
|
the
CORPORATION is a corporation which is neither created nor organized
in or
under the United States or any political subdivision thereof, but
which
has made an election under either Section 897(i) or 897(k) of the
United
States Internal Revenue Code of 1986, as amended, to be treated
as a
domestic corporation for certain purposes of United States federal
income
taxation (A
COPY OF THE INTERNAL REVENUE SERVICE ACKNOWLEDGMENT OF THE UNDERSIGNED’S
ELECTION MUST BE ATTACHED TO THIS PURCHASE AGREEMENT IF THIS PROVISION
IS
APPLICABLE).
|
D-2
[ ]
|
(iii)
|
neither
(i) nor (ii) above is true.
|
III.
|
GENERAL
INFORMATION
|
(a)
|
PROSPECTIVE
PURCHASER (THE CORPORATION)
|
Name:
|
|||||||||||||||
Principal
Place of Business:
|
|||||||||||||||
(Number
and Street)
|
|||||||||||||||
(City)
|
(State) (Zip
Code)
|
||||||||||||||
Address
for Correspondence (if different):
|
|||||||||||||||
(Number
and Street)
|
|||||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
|||||||||||||
Telephone
Number:
|
|||||||||||||||
(Area
Code)
|
(Number)
|
||||||||||||||
Facsimile
Number:
|
|||||||||||||||
(Area
Code)
|
(Number)
|
||||||||||||||
State
of Incorporation:
|
|||||||||||||||
Date
of Formation:
|
|||||||||||||||
Taxpayer
Identification Number:
|
|||||||||||||||
Number
of Shareholders:
|
|||||||||||||||
NASD
Affiliation or Association of the PARTNERSHIP, if any:
|
|||||||||||||||
If
none, check
here [ ]
|
(b)
|
INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
CORPORATION
|
Name:
|
|
Position
or Title:
|
|
Email
Address:
|
IV.
|
SIGNATURE
|
The
Signature Page to this Questionnaire is contained on page D-4, entitled
Corporation Signature Page.
D-3
CORPORATION
SIGNATURE PAGE
_________________________
MAGNETECH
INTEGRATED SERVICES CORP
________________________
1. The
undersigned CORPORATION represents that (a) the information contained in
this
Questionnaire is complete and accurate and (b) the CORPORATION will notify
Xxxxxx Xxxx, at 000-000-0000 immediately if any material change in any of
the
information occurs prior to the acceptance of the undersigned CORPORATION’s
subscription and will promptly send Xxxxxx Xxxx written confirmation of such
change.
2. The
undersigned CORPORATION hereby represents and warrants that the person signing
this Questionnaire on behalf of the CORPORATION has been duly authorized
by all
requisite action on the part of the CORPORATION to acquire the Securities
and
sign this Questionnaire and the Purchase Agreement on behalf of the CORPORATION
and, further, that the undersigned CORPORATION has all requisite authority
to
purchase the Securities and enter into the Purchase Agreement.
Dollar
Amount of Securities Applied For
|
Date
|
||||
Name
of Corporation
|
|||||
(Please
Type or Print)
|
|||||
By:
|
|||||
(Signature)
|
|||||
Name:
|
|||||
(Please
Type or Print)
|
|||||
Title:
|
|||||
(Please
Type or Print)
|
THE
SECURITIES COMPRISING THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
D-4
IMPORTANT:
|
Investor
Name: ___________________
|
Please
Complete
|
RETIREMENT
PLAN QUESTIONNAIRE
___________________________
MAGNETECH
INTEGRATED SERVICES CORP.
__________________________
Magnetech
Integrated Services Corp.
0000 Xxxxx
Xxxxxx Xxxxxx
Xxxxx
Xxxx, Xxxxxxx 00000
The
information contained in this Questionnaire is being furnished in order to
determine whether the undersigned RETIREMENT PLAN’s subscription to purchase
shares Debentures and Warrants (the “Securities”) of Magnetech Integrated
Services Corp (the “Company”) may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Xxxxxxxxxxxx Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000 if you
have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned RETIREMENT PLAN understands, however, that the Company may present
this Questionnaire to such parties as it deems appropriate if called upon
to
establish that the proposed offer and sale of the Securities is exempt from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned RETIREMENT PLAN understands that the offering is required to
be
reported to the Securities and Exchange Commission and to various state
securities or “blue sky” regulators.
I.
|
PLEASE
CHECK ANY OF THE FOLLOWING STATEMENTS, AS
APPLICABLE.
|
[ ]
1.
|
The
undersigned RETIREMENT PLAN certifies that it is an employee benefit
plan
within the meaning of the Employee Retirement Income Security Act
of 1974
(“ERISA”) and:
|
[ ]
(a)
|
the
investment decisions are made by a plan fiduciary as defined in
Section
3(21) of ERISA that (i) is either a bank, insurance company or
registered
investment advisor or (ii) is a savings and loan association;
or
|
[ ]
(b)
|
The
undersigned RETIREMENT PLAN has total assets in excess of $5,000,000;
or
|
E-1
[ ]
(c)
|
The
undersigned RETIREMENT PLAN is self-directed, with investment decisions
made solely by persons each of whom satisfies at least one of the
following conditions:
|
[ ]
|
(i)
|
such
person’s individual net worth* For
purposes of this Questionnaire, the term "net worth" means the
excess of
total assets over total liabilities. In determining income, an
investor
should add to his or her adjusted gross income any amounts attributable
to
tax-exempt income received, losses claimed as a limited partner
in any
limited partnership, deductions claimed for depletion, contributions
to
XXX or Xxxxx retirement plans, alimony payments and any amount
by which
income from long-term capital gains has been reduced in arriving
at
adjusted gross income.
or
joint net worth with his or her spouse exceeds $1,000,000;
or
|
[ ]
|
(ii)
|
such
person had an individual income*
in
excess of $200,000 in each of the previous two years and reasonably
expects an individual income in excess of $200,000 for this year;
or
|
[ ]
|
(iii)
|
such
person together with his or her spouse, had a joint income*
in
excess of $300,000 in each of the previous two years and reasonably
expects a joint income in excess of $300,000 for this
year.
|
[ ]
2.
|
The
undersigned RETIREMENT PLAN certifies that it is an employee benefit
plan,
Xxxxx plan or Individual Retirement Account in which each participant
satisfies at least one of the following
conditions:
|
[ ]
(a)
|
such
person’s individual net worth* or joint net worth with his or her spouse
exceeds $1,000,000; or
|
[ ]
(b)
|
such
person had an individual income* in excess of $200,000 in each
of the
previous two years and reasonably expects an individual income
in excess
of $200,000 for this year; or
|
[ ]
(c)
|
such
person, together with his or her spouse, had a joint income* in
excess of
$300,000 in each of the previous two years and reasonably expects
a joint
income in excess of $300,000 for this
year.
|
____________________
*For
purposes of this Questionnaire, the term "net worth" means the excess
of total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt
income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term
capital
gains has been reduced in arriving at adjusted gross
income.
E-2
IF YOU CHECKED STATEMENT 1(c) OR STATEMENT 2 AND NOT STATEMENT 1(a) OR STATEMENT 1(b), YOU MUST PROVIDE A LETTER SIGNED BY A PERSON DULY AUTHORIZED BY THE RETIREMENT PLAN LISTING, AS APPLICABLE (I) THE NAMES OF THE PERSONS (OR ENTITIES) MAKING THE INVESTMENT DECISIONS, OR (II) THE NAMES OF ALL OF THE PARTICIPANTS IN THE PLAN AND THE REASON (UNDER STATEMENT 1(c) OR STATEMENT 2) SUCH PERSON (OR ENTITY), QUALIFIES AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL INCOME, JOINT INCOME OR OTHERWISE), OR EACH SUCH PERSON (OR ENTITY) MUST COMPLETE THE APPROPRIATE QUESTIONNAIRE (i.e. FOR AN INDIVIDUAL, TRUST, PARTNERSHIP OR CORPORATION). |
II.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, the undersigned certifies the
following:
(a)
|
that
the RETIREMENT PLAN’s purchase of the Securities will be solely for the
RETIREMENT PLAN’s own account and not for the account of any other person
or entity;
|
(b)
|
that
the RETIREMENT PLAN’s governing documents duly authorize the type of
investment contemplated herein, and the undersigned is authorized
and
empowered to make such investment on behalf of the RETIREMENT
PLAN.
|
(c)
|
that
one of the following is true and correct (check
one):
|
[ ]
(i)
|
the
RETIREMENT PLAN is a retirement plan whose income from sources
outside of
the United States is includable in its gross income for United
States
federal tax purposes regardless of its connection with a trade
or business
carried on in the United States.
|
[ ]
(ii)
|
the
RETIREMENT PLAN is a retirement plan whose income from sources
outside the
United States is not includable in its gross income for United
States
federal income tax purposes regardless of its connection with a
trade or
business carried on in the United
States.
|
III.
|
GENERAL
INFORMATION
|
(a)
|
PROSPECTIVE
PURCHASER (THE RETIREMENT PLAN)
|
Name:
|
|||||||||||||
Address:
|
|||||||||||||
(Number
and Street)
|
|||||||||||||
(City)
|
(State) (Zip
Code)
|
||||||||||||
Address
for Correspondence (if different):
|
|||||||||||||
(Number
and Street)
|
|||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
|||||||||||
Telephone
Number:
|
|||||||||||||
(Area
Code)
|
(Number)
|
E-3
Address
for Correspondence (if different):
|
|||||||||||||
(Number
and Street)
|
|||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
|||||||||||
Telephone
Number:
|
|||||||||||||
(Area
Code)
|
(Number)
|
Telephone
Number:
|
|||||||||||||
(Area
Code)
|
(Number)
|
Facsimile
Number:
|
||||||||
(Area
Code)
|
(Number)
|
|||||||
State
in which Formed:
|
||||||||
Date
of Formation:
|
||||||||
Taxpayer
Identification Number:
|
(b)
|
INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE RETIREMENT
PLAN
|
Name:
|
|
Position
or Title:
|
|
Email
Address:
|
IV.
|
ADDITIONAL
INFORMATION
|
THE RETIREMENT PLAN MUST ATTACH COPIES OF ALL DOCUMENTS GOVERNING THE PLAN AS WELL AS ALL OTHER DOCUMENTS AUTHORIZING THE RETIREMENT PLAN TO INVEST IN THE SECURITIES. INCLUDE, AS NECESSARY, DOCUMENTS DEFINING PERMITTED INVESTMENTS BY THE RETIREMENT PLAN, AND DEMONSTRATING AUTHORITY OF THE SIGNING INDIVIDUAL TO ACT ON BEHALF OF THE PLAN. ALL DOCUMENTATION MUST BE COMPLETE AND CORRECT. |
V.
|
SIGNATURE
|
The
Signature Page to this Questionnaire is contained on page E-5, entitled
Retirement Plan Signature Page.
E-4
RETIREMENT
PLAN SIGNATURE PAGE
_________________________
MAGNETECH
INTEGRATED SERVICES CORP.
________________________
1. The
undersigned RETIREMENT PLAN represents that (a) the information contained
in
this Questionnaire is complete and accurate and (b) the RETIREMENT PLAN will
notify Xxxxxx Xxxx, at 000-000-0000 immediately if any material change in
any of
the information occurs prior to the acceptance of the undersigned RETIREMENT
PLAN’s subscription and will promptly send Xxxxxx Xxxx written confirmation of
such change.
2. The
undersigned RETIREMENT PLAN hereby represents and warrants that the person
signing this Questionnaire on behalf of the RETIREMENT PLAN has been duly
authorized to acquire the Common Stock and sign this Questionnaire and the
Purchase Agreement on behalf of the RETIREMENT PLAN and, further, that the
undersigned RETIREMENT PLAN has all requisite authority to purchase the
Securities and enter into the Purchase Agreement.
Dollar
Amount of Securities Applied For
|
Date
|
||||
Name
of Retirement Plan
|
|||||
(Please
Type or Print)
|
|||||
By:
|
|||||
(Signature)
|
|||||
Name:
|
|||||
(Please
Type or Print)
|
|||||
Title:
|
|||||
(Please
Type or Print)
|
THE
SECURITIES COMPRISING THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
E-5
IMPORTANT:
|
Investor
Name: ___________________
|
Please
Complete
|
LIMITED
LIABILITY COMPANY QUESTIONNAIRE
______________________
MAGNETECH
INTEGRATED SERVICES CORP.
______________________
Magnetech
Integrated Services Corp.
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxx
Xxxx, Xxxxxxx 00000
The
information contained in this Questionnaire is being furnished in order to
determine whether the undersigned LIMITED LIABILITY COMPANY’s subscription to
purchase Securities (the “Securities”) of Magnetech Integrated Services
Corp (the “Company”) may be accepted.
One
(1)
copy of this Questionnaire should be completed, signed, dated and delivered
to
Xxxxxx Xxxx at Xxxxxxxxxxxx Xxxxxxx Tulcin Xxxxx Inc. 00 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Please contact Xxxxxx Xxxx at 000-000-0000 if you
have
any questions with respect to this Questionnaire.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The
undersigned LIMITED LIABILITY COMPANY understands, however, that the Company
may
present this Questionnaire to such parties as it deems appropriate if called
upon to establish that the proposed offer and sale of the Securities is exempt
from registration under the Securities Act of 1933, as amended, or meets
the
requirements of applicable state securities or “blue sky” laws. Further, the
undersigned LIMITED LIABILITY COMPANY understands that the offering is required
to be reported to the Securities and Exchange Commission and to various state
securities or “blue sky” regulators.
I.
|
PLEASE
CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLY TO THE LIMITED LIABILITY
COMPANY.
|
[ ]
1.
|
Each
of the members of the undersigned LIMITED LIABILITY COMPANY is
able to
certify that such member meets at least one of the following two
conditions:
|
(a)
|
The
member is a natural person whose individual net worth* or
joint net worth with his or her spouse exceeds $1,000,000;
or
|
____________________
*For
purposes of this Questionnaire, the term "net worth" means the excess of
total
assets over total liabilities. In determining income, an investor should
add to
his or her adjusted gross income any amounts attributable to tax-exempt income
received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement
plans, alimony payments and any amount by which income from long-term capital
gains has been reduced in arriving at adjusted gross income.
F-1
(b)
|
The
member is a natural person who had an individual income*
in
excess of $200,000 in each of the previous two years and who reasonably
expects an individual income in excess of $200,000 for this
year.
|
[ ]
2.
|
Each
of the members of the undersigned LIMITED LIABILITY COMPANY is
able to
certify that such member is a natural person who, together with
his or her
spouse, has had a joint income*
in
excess of $300,000 in each of the previous two years and who reasonably
expects a joint income in excess of $300,000 for this
year.
|
[ ]
3.
|
The
undersigned LIMITED LIABILITY COMPANY: (a) was not formed for the
specific
purpose of acquiring any Securities; and
(b) has total assets in excess of
$5,000,000.
|
[ ]
4.
|
The
sole member of the undersigned LIMITED LIABILITY COMPANY is able
to
certify that such member is an entity which (a) was not formed
for the
specific purpose of acquiring any Common Stock; and
(b) has total assets in excess of
$5,000,000.
|
IF YOU CHECKED STATEMENT 1 OR STATEMENT 2 IN SECTION 1 AND DID NOT CHECK STATEMENT 3, YOU MUST PROVIDE A LETTER SIGNED BY A MANAGER OF THE UNDERSIGNED LIMITED LIABILITY COMPANY LISTING THE NAME OF EACH MEMBER AND THE REASON (UNDER STATEMENT 1 OR STATEMENT 2) WHY SUCH MEMBER QUALIFIES AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL INCOME OR JOINT INCOME), OR EACH MEMBER MUST PROVIDE A COMPLETED INDIVIDUAL INVESTOR QUESTIONNAIRE (PAGES A-1 TO A-5). |
II.
|
OTHER
CERTIFICATIONS
|
By
signing the Signature Page, the undersigned certifies the
following:
(a)
|
that
the LIMITED LIABILITY COMPANY’s purchase of the Securities will be solely
for the LIMITED LIABILITY COMPANY’s own account and not for the account of
any other person or entity;
|
(b)
|
that
the LIMITED LIABILITY COMPANY’s name, address of principal office, place
of incorporation and taxpayer identification number as set forth
in this
Questionnaire are true, correct and complete;
and
|
(c)
|
that
one of the following is true and correct (check
one):
|
[ ]
(i)
|
the
LIMITED LIABILITY COMPANY is organized in or under the laws of
the United
States or any political subdivision
thereof.
|
F-2
[ ]
(ii)
|
the
LIMITED LIABILITY COMPANY is neither created nor organized in or
under the
United States or any political subdivision
thereof.
|
III.
|
GENERAL
INFORMATION
|
(a)
|
PROSPECTIVE
PURCHASER (THE LIMITED LIABILITY
COMPANY)
|
Name:
|
|||||||||||||||
Principal
Place of Business:
|
|||||||||||||||
(Number
and Street)
|
|||||||||||||||
(City)
|
(State) (Zip
Code)
|
||||||||||||||
Address
for Correspondence (if different):
|
|||||||||||||||
(Number
and Street)
|
|||||||||||||||
(City)
|
(State)
|
(Zip
Code)
|
|||||||||||||
Telephone
Number:
|
|||||||||||||||
(Area
Code)
|
(Number)
|
||||||||||||||
Facsimile
Number:
|
|||||||||||||||
(Area
Code)
|
(Number)
|
||||||||||||||
E-mail
Address:
|
|||||||||||||||
State
of Formation:
|
|||||||||||||||
Date
of Formation:
|
|||||||||||||||
Taxpayer
Identification Number:
|
|||||||||||||||
Number
of Members:
|
|||||||||||||||
NASD
Affiliation or Association of the PARTNERSHIP, if any:
|
|||||||||||||||
If
none, check
here [ ]
|
(b)
|
INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE LIMITED LIABILITY
COMPANY
|
Name:
|
|
Position
or Title:
|
IV.
|
SIGNATURE
|
The
Signature Page to this Questionnaire is contained on page F-4, entitled LIMITED
LIABILITY COMPANY Signature Page.
F-4
LIMITED
LIABILITY COMPANY SIGNATURE PAGE
_________________________
MAGNETECH
INTEGRATED SERVICES CORP
________________________
1. The
undersigned LIMITED LIABILITY COMPANY represents that (a) the information
contained in this Questionnaire is complete and accurate and (b) the LIMITED
LIABILITY COMPANY will notify Xxxxxx Xxxx, at 000-000-0000 immediately if
any
material change in any of the information occurs prior to the acceptance
of the
undersigned LIMITED LIABILITY COMPANY’s subscription and will promptly send
Xxxxxx Xxxx written confirmation of such change.
2. The
undersigned LIMITED LIABILITY COMPANY hereby represents and warrants that
the
person signing this Questionnaire on behalf of the LIMITED LIABILITY COMPANY
has
been duly authorized by all requisite action on the part of the LIMITED
LIABILITY COMPANY to acquire the Securities and sign this Questionnaire and
the
Purchase Agreement on behalf of the LIMITED LIABILITY COMPANY and, further,
that
the undersigned LIMITED LIABILITY COMPANY has all requisite authority to
purchase the Securities and enter into the Purchase Agreement.
Dollar
Amount of Securities Applied For
|
Date
|
||||
Name
of LIMITED LIABILITY COMPANY
|
|||||
(Please
Type or Print)
|
|||||
By:
|
|||||
(Signature)
|
|||||
Name:
|
|||||
(Please
Type or Print)
|
|||||
Title:
|
|||||
(Please
Type or Print)
|
THE
SECURITIES COMPRISING THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, CONCURRED
IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION
OF
SUCH SECURITIES IS NOT REQUIRED.
F-5