Exhibit 4.10
Name: Xxxxxxxxx Venture Capital, L.L.C.
---------------------------------
SUBSCRIPTION AGREEMENT
Affinity International Travel Systems, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 X
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Gentlemen:
The undersigned understands that Affinity International Travel Systems, Inc., a
Nevada corporation (the "Company"), is offering for sale a convertible note in
the aggregate principal amount of $1,000,000.00 (the "Note"), convertible into
2,000,000 shares of common stock, $0.001 par value per share (the "Common
Stock") for the Purchase Price set forth in Section 4 hereof. This Note is
unsecured, shall not bear any interest, is immediately convertible, shall only
be payable in common stock at the time of conversion and, to the extent the Note
has not been converted by June 15, 1999, the unconverted principal shall
automatically be converted into shares of common stock, as provided herein
without further action on the part of the Company or the undersigned.
The undersigned further understands that the offering is being made without
registration of the Note or the underlying Common Stock under the Securities Act
of 1933, as amended (the "Securities Act"), in reliance on an exemption for
transactions by an issuer not involving a public offering and further
understands that the undersigned is purchasing such securities without being
furnished any prospectus setting forth all of the information that would be
required to be furnished under the Securities Act, and understands further that
the offering is being made only to "accredited investors" (as defined in Rule
501 of Regulation D under the Securities Act).
1. Subscription. Subject to the terms and conditions of this Subscription
Agreement (this "Agreement"), the undersigned hereby irrevocably subscribes for
the Note, the purchase price for which is payable as described in Section 4.
2. Acceptance of Subscription and Issuance of Note. It is understood and
agreed that the Company has the right to accept or reject this subscription, in
whole or in part, and that this subscription is accepted by the Company only
when it is signed by a duly authorized officer of the Company and delivered to
the undersigned at the Closing referred to in Section 3.
3. The Closing. The closing of the purchase and sale of the Note (the
"Closing") shall take place at the offices of the Company or such other mutually
acceptable place on or before June 10, 1999 or at such time and place as the
Company and the undersigned shall mutually agree upon. The Company may, at its
option, elect to close the purchase and sale of the Note in one or more
Closings.
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4. Payment and Terms of Note. The undersigned shall make payment in the
amount of One Million and No/100 Dollars ($1,000,000.00) (the "Purchase Price"),
for the Note, less (i) the amount of any deposit received by the Company and
(ii) an amount necessary to cover all costs and expenses, including reasonable
attorney and professional fees, travel, lodging and other transportation
expenses, if any, of the undersigned incurred in connection with this
subscription and, upon request, submission of appropriate invoices and receipts.
The Purchase Price shall be paid to the Company via certified check, personal
check, or wire transfer to the account designated by the Company. The Purchase
Price, less any and all deductions therefrom as provided for herein, shall be
paid in full to the Company not later than the Closing Date.
5. Representations of the Company. As of the date of the Closing (the
"Closing Date"), the Company represents as follows:
(a) Valid Issuance. The Common Stock issuance upon conversion of the Note,
when issued in accordance with the Note, will represent validly authorized, duly
issued and fully paid and non-assessable shares of the Company, and the issuance
thereof will not conflict with the Certificate of Incorporation or Bylaws of the
Company nor with any outstanding warrant, option, call, preemptive right or
commitment of any type relating to the Company's capital stock.
(b) Other Representations and Agreements.
(i) Use of Proceeds. The Company agrees that it, or a wholly owned
subsidiary of the Company, shall use not less than fifty percent (50%) of the
proceeds received from this subscription for the Information Technology (as that
term is understood by the undersigned and the Company) requirements of the
Company or any wholly owned subsidiary of the Company and not less than ten
percent (10%) of the proceeds received from this subscription for the direct
marketing purposes of the Company or any wholly owned subsidiary of the Company.
Additionally, the Company will reserve a reasonable percentage of the funds
received in from this subscription, but in no event shall such percentage exceed
ten percent (10%) of the Purchase Price, for the future legal expenses of the
undersigned incurred as a result of this subscription agreement and amounts
owing to the undersigned for its continuing efforts on behalf of the Company
pursuant to that certain consulting agreement by and between the Company and the
undersigned dated April 23, 1999. The remainder of the proceeds received from
this subscription shall only be used by the Company or any wholly owned
subsidiary of the Company for directly related operating expenses of the Company
or any wholly owned subsidiary of the Company, but in no event shall the
proceeds from this subscription be used for present or future compensation,
(other than normal salaries) of any officer or director of the Company.
(ii) Right of First Refusal - Future Financing. For eighteen (18)
months from and after the date hereof, in the event that the Company solicits,
or is advised by an investment banker or financing specialist to solicit,
investment capital by means of any private placement of securities or other
financing efforts utilizing securities of the Company, the Company shall first
offer to the undersigned the ability to participate in all or part of such
private placement or financing. The undersigned shall accept or reject the offer
within five business (5) days of receipt
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of the offer. Such response shall be made in writing via certified mail, return
receipt requested, or via overnight mail. If the undersigned does not accept
such offer within such five (5) business day period, such offer shall be deemed
rejected for purposes of this Agreement. In the event that the undersigned
agrees to provide such future financing, the undersigned shall be required to
provide such financing at a discounted commission rate of five percent (5%).
(iii) Registration of Shares. Not later than December 15, 1999, the
Company shall effect a registration under the Securities Act of all shares of
common stock owned by the undersigned and which the undersigned requests to be
registered. The Company will bear all registration expenses (exclusive of
underwriting discounts and commissions) of all registrations of the securities
owned by the undersigned.
If the Company intends to distribute any of the registered
shares of the undersigned and/or any other shareholder and/or the Company
pursuant to an underwriting and the underwriter advises the Company in writing
that marketing factors require a limitation of shares to be underwritten, the
number of shares of the undersigned to be included in such underwriting shall
not be reduced, pro rata or otherwise, unless all other securities are first
entirely excluded from the underwriting or upon receipt of the written consent
of the undersigned waiving such right, which consent may be withheld for any or
no reason. If despite the best efforts of the Company, the total number of
shares requested by the undersigned to be registered cannot be so included, the
Company shall purchase from the undersigned that number of shares which was
unable to be included in the underwritten offering at the price per share
received in the offering.
If the Company shall furnish to the undersigned a certificate
signed by the Chief Executive Officer of the Company providing that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period not to exceed ninety (90) days;
provided, however, in the event that the Company shall fail to have a
registration statement declared effective by the United States Securities and
Exchange Commission ("SEC") by December 15, 1999 for any reason whatsoever,
including pursuant to the terms of this paragraph, as compensation for the
breach of the terms of this Subscription Agreement by the Company, the Company
shall immediately transfer to the undersigned 120,000 shares of common stock.
For each successive thirty (30) day period commencing on December 16, 1999 that
the Company does not have an effective registration statement filed with the
SEC, the Company shall transfer to the undersigned an additional 120,000 shares
of common stock. The Company shall not have the right to defer registration more
than once in any twelve (12) month period.
(iv) Additional Registration Rights. The undersigned shall be
entitled to unlimited "piggyback" registration rights in connection with all
registrations of securities by the Company under the Securities Act of 1933 or
in connection with any demand registration of any shareholder of the Company
(except for registrations on Form S-8 or Form S-4). The Company will bear all
registration expenses (exclusive of underwriting discounts and commissions) of
all piggyback registrations by the undersigned.
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(v) Sale of Additional Investor Shares. From and after the date
hereof, in the event that the Company in any non-public offering sells any
common stock at a price per share that is less than $0.50, then for no
additional consideration, the Company shall immediately transfer to the
undersigned that number of shares of common stock of the Company equal to the
difference between (1) the number of shares which would have been issuable upon
conversion of the Note at the lesser price per share of such subsequently sold
securities and (2) the number of shares issuable under the Note.
(vi) Co-Sale Rights. The Company shall, and shall cause its officers
and directors (collectively with the Company the "Shareholders") to, grant to
the undersigned a right of co-sale (on a pro-rata basis) such that upon notice
to the undersigned of any non-public sale or disposition of shares of the
Company by such Shareholders and/or the Company, the undersigned, upon written
notice to the Company and/or the selling Shareholders, shall be entitled to
participate, pro-rata as determined by each party's percentage ownership in the
Company, in such sale of shares of the Company on the same terms and conditions
as the Company and/or the selling Shareholders.
In the event the Company or a Shareholder sells any shares in
contravention of the co-sale rights of the undersigned under this Agreement (a
"Prohibited Transfer"), the undersigned, in addition to such other remedies as
may be available at law, in equity or hereunder, shall have the "put" option
provided below, and the Company and the Shareholders shall be bound by the
applicable provisions of such option.
In the event of a Prohibited Transfer, the undersigned shall have
the right to sell to the Company the number of shares equal to the number of
shares the undersigned would have been entitled to transfer to the purchaser
hereunder had the Prohibited Transfer been effected pursuant to and in
compliance with the terms hereof. Such sale shall be made on the following terms
and conditions:
(1) The price per share at which the shares are to be sold to
the Company shall be equal to the price per share paid by the purchaser to the
Shareholder or the Company in the Prohibited Transfer. The Company shall also
reimburse the undersigned for any and all fees and expenses, including
reasonable legal fees and expenses, incurred pursuant to the exercise or the
attempted exercise of the undersigned's rights hereunder.
(2) Within ninety (90) days after the later of the dates on
which the undersigned either (A) received notice of the Prohibited Transfer or
(B) otherwise became aware of the Prohibited Transfer, the undersigned shall, if
exercising the option created hereby, deliver to the Company the certificate or
certificates representing shares to be sold, each certificate to be properly
endorsed for transfer.
(3) The Company shall, upon receipt of the certificate or
certificates for the shares to be sold by the undersigned pursuant to this
Subsection, pay the aggregate purchase price therefore and the amount of
reimbursable fees and expense in cash or by other means acceptable to the
undersigned.
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(vii) Marketability. Prior to becoming a fully reporting company
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
Company shall maintain adequate current public information in satisfaction of
the requirements for resales of restricted stock pursuant to Rule 144
promulgated under the Securities Act of 1933, as amended, and Rule 15c-2(11)
promulgated under the Exchange Act, including, but not limited to, the
publication over a nationally recognized reporting service or newswire of annual
audited financial statements and semi-annual interim unaudited balance sheets
and income statements it being understood that the Company does not currently
have audited financial statements for the year ended June 30, 1998. After the
Company becomes a fully reporting company, the Company shall file all reports
required under the Exchange Act.
(viii) Stock Splits. In order to induce the undersigned to enter
into this subscription agreement and to facilitate the closing of the
transaction contemplated hereby, the Company represents and warrants to the
undersigned that from and after the date hereof, the Company will not engage in
any manner of reverse split without the prior written consent of the
undersigned, which consent may not be unreasonably withheld.
(ix) Mandatory Offer of Redemption. In the event that the Company
sells any of its common stock in any secondary public offering, whether
underwritten or not, immediately following the earlier of the receipt of the
proceeds from such offering or the closing of the offering transaction the
Company will make an offer to the undersigned to purchase an amount of the
Company's common stock from the undersigned with a value of up to ten percent
(10%) of the total value of the offering. The offer to the undersigned shall be
at the same price per share as received by the Company in the offering. For
example, if the Company closes a public sale for 1,000,000 shares of common
stock at $5.00 per share (aggregate offering price of $5,000,000.00), the
Company must offer to redeem 100,000 shares of common stock from the undersigned
at $5.00 per share. Nothing in this subsection (ix) shall obligate the
undersigned to accept the redemption offer by the Company; however, any
acceptance by the undersigned must be received within five (5) business days
from receipt by the undersigned of a written offer from the Company.
(x) Consulting Agreement. The Company and the undersigned shall
amend and restate the consulting agreement entered into by and between the
Company and the undersigned on April 23, 1999 (the "Consulting Agreement") to
reflect the current agreement between the parties thereto.
6. Representations and Warranties of the Undersigned. The undersigned
hereby represents and warrants to the Company and to each officer, director, and
agent of the Company that:
(a) Authority. The undersigned has all requisite authority to enter into
this Agreement and to perform all the obligations required to be performed by
the undersigned hereunder.
(b) Access to Information. The undersigned is familiar with the business
and financial condition, properties, operations and prospects of the Company.
The undersigned has been
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furnished copies of the Financial Statements and all other documents requested
by it and has had an opportunity to discuss the Company's business and financial
condition, properties, operations and prospects with the Company's management.
The undersigned has also had an opportunity to ask questions of officers of the
Company, which questions were answered to his satisfaction. The undersigned
understands that such discussions were intended to describe certain aspects of
the Company's business and financial condition, properties, operations and
prospects, but were not a thorough or exhaustive description.
(c) Representations and Warranties as of Closing. The undersigned
understands that, unless it notifies the Company in writing to the contrary at
or before the Closing, all the undersigned's representations and warranties
contained in this Agreement will be deemed to have been reaffirmed and confirmed
as of the Closing, taking into account all information received by the
undersigned.
(d) Risk Factors. The undersigned understands that the purchase of the
Common Stock involves substantial risks.
(e) Knowledge, Skill and Experience. The undersigned has such knowledge,
skill and experience in business, financial and investment matters so that is
capable of evaluating the merits and risks of an investment in the Note and the
underlying Common Stock. To the extent necessary, the undersigned has retained,
at his own expense, and relied upon, appropriate professional advice regarding
the investment, tax and legal merits and consequences of this Agreement and
owning the Note and the underlying Common Stock.
(f) Accredited Investor. The undersigned is an "accredited investor" as
defined in Rule 501(a) under the Securities Act.
(g) Investment Intent. The undersigned is acquiring the Common Stock
solely for his own beneficial account, for investment purposes, and not with a
view to, or for resale in connection with, any distribution of the Common Stock.
The undersigned has not offered or sold any portion of its shares of Common
Stock and has no present intention of dividing his shares of Common Stock with
others or of reselling his shares of Common Stock. The undersigned understands
that the Common Stock has not been registered under the Securities Act or any
State Securities Laws by reason of specific exemptions under the provisions
thereof which depend in part upon the investment intent of the undersigned and
the other representations made by the undersigned in this Agreement. The
undersigned understands that the Company is relying upon the representations and
agreements contained in this Agreement (and any supplemental information) for
the purpose of determining whether this transaction meets the requirements for
such exemptions.
(h) Stock Transfer Restrictions. The undersigned agrees: (i) that it will
not sell, assign, pledge, give, transfer or otherwise dispose of the Note or
underlying Common Stock or any interest therein, or make any offer or attempt to
do any of the foregoing, except pursuant to a registration of the Common Stock
under the Securities Act and all applicable State Securities Laws or in a
transaction which is exempt from the registration provisions of the Securities
Act and all applicable State Securities Laws; and (ii) that the Company and any
transfer agent for the
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Common Stock shall not be required to give effect to any purported transfer of
any of the Common Stock except upon compliance with the foregoing provisions.
7. Conditions to Obligations of the Undersigned and the Company. The
obligations of the undersigned to purchase and pay for the Note specified herein
and of the Company to sell the Note are subject to the satisfaction at or before
the Closing of the following condition precedent:
(a) Representations and Warranties. The representations and warranties of
the Company contained in Section 5 and of the undersigned contained in Section 6
shall be true and correct on and as of the Closing in all respects with the same
effect as though such representations and warranties had been made on and as of
the Closing.
(b) Warrant Subscription Agreement. On or prior to the date hereof, the
Company and the undersigned shall have entered into a Warrant Subscription
Agreement on mutually acceptable terms.
(c) Consulting Agreement. On or prior to the date hereof, the Company and
the undersigned shall have amended and restated the Consulting Agreement to
reflect the current agreement of the parties thereto.
8. Obligations Irrevocable. The obligations of the undersigned hereunder
shall be irrevocable, except with the consent of the Company, until 3:00 p.m.
EDT, June 10, 1999.
9. Equitable Remedies. Each party hereto acknowledges that a refusal
without just cause by such party to consummate the transactions contemplated
hereby will cause irreparable harm to the other party, for which there may be no
adequate remedy at law. A party not in default at the time of such refusal shall
be entitled, in addition to other remedies at law or in equity, to specific
performance of this Agreement by the party that so refused or failed to
consummate the transactions contemplated hereby. In any action to enforce the
terms of this Agreement, the successful party shall be entitled to recover its
reasonable attorneys' fees, all costs and expenses from the party who refused or
failed to perform this Agreement.
10. Waiver, Amendment. Neither this Agreement nor any provisions of this
Agreement shall be modified, changed, discharged or terminated except by an
instrument in writing, signed by the party against whom any waiver, change,
discharge or termination is sought.
11. Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason of this Agreement shall
be assignable by the Company without the prior written consent of the
undersigned. The undersigned may assign, transfer, pledge, encumber, mortgage or
otherwise alienate any of the rights afforded to it hereunder and the Company
shall be bound by the terms hereof to such assignee or transferee; provided,
however, that any assignment, transfer, or other alienation of any right
hereunder by the undersigned shall be in compliance with all federal and state
securities laws.
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12. Expenses. The Company shall pay all actual expenses incurred in
connection with this Agreement and the transactions contemplated hereby,
including, but not limited to, any and all legal, travel, lodging, meals and
other related transaction expenses of the undersigned and, upon request,
submission of appropriate invoices and receipts. In any action to enforce the
terms of this Agreement, the successful party shall be entitled to recover its
reasonable costs and expenses, including reasonable attorneys' fees, from the
party who refused or failed to perform this Agreement.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the federal laws of the United State of America and the laws of
the State of Nevada.
14. Section and Other Headings. The section and other headings contained
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which together shall be deemed to be one and the same
agreement.
16. Notices. All notices and other communications provided for herein
shall be in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail, return receipt requested,
postage prepaid:
(1) If to the Company, to it at the following address:
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 X
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
FAX: (000) 000-0000
with a copy, which shall not constitute notice, to:
Xxxxx Xxxxxxx Freed & Gesmer
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
(2) If to the undersigned:
Xxxxxxxxx Venture Capital, L.L.C.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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and
Xxxxxx X. Xxxxxxxxx, Xx.
0000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
with a copy, which shall not constitute notice, to:
Xxxxx Liddell & Xxxx, LLP
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
FAX: (000) 000-0000
or at such other address as either party shall have specified by notice in
writing to the other.
16. Binding Effect. The provisions of this Agreement shall be binding upon
and accrue to the benefit of the parties and their respective successors and
permitted assigns.
17. Survival. All representations contained in this Agreement shall
survive the closing of the issuance and sale of the Notes.
18. Notification of Changes. The undersigned hereby covenants and agrees
to notify the Company upon the occurrence of any event before the closing of the
purchase of the Notes and issuance of the underlying Common Stock pursuant to
this Agreement which would cause any representation, warranty, or covenant of
the undersigned contained in this Agreement to be false or incorrect.
[The remainder of this page intentionally left blank; the signature page
follows.]
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IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this 10th day of June, 1999.
Name: Xxxxxxxxx Venture Capital, LLC
BY: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
----------------------------
XXXXXX X. XXXXXXXXX, XX.
Managing Member
Accepted as of
June 10, 1999
AFFINITY INTERNATIONAL
TRAVEL SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
XXXXXX X. XXXXXXXX
President and
Chief Executive Officer
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APPENDIX A
CONSIDERATION TO BE DELIVERED
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Convertible Note to be Acquired Aggregate Amount to Be Paid on Closing
------------------------------- --------------------------------------
$1,000,000.00 less the amount of any
$1,000,000.00 principal amount deposit and any amount necessary to
convertible into 2,000,000 shares of satisfy all outstanding expenses of the
common stock subscriber incurred in connection with
this subscription agreement
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APPENDIX B
ACCREDITED INVESTOR CERTIFICATE
The undersigned Investor hereby certifies that it is an Accredited
Investor as that term is defined in Regulation D adopted pursuant to the
Securities Act of 1933. The specific category(s) of Accredited Investor
applicable to the undersigned is checked below.
___ a. any natural person whose individual net
worth, or joint net worth with that person's spouse, at
the time of his purchase exceeds $1,000,000;
___ b. any natural person who had an individual
income in excess of $200,000 in each of the two most
recent years or joint income with that person's spouse
in excess of $300,000 and has a reasonable expectation
of reaching the same income level in the current year;
___ c. any bank as defined in section 3(a)(2) of
the Securities Act of 1933, as amended (the "Act"), or
any savings and loan association or other institution as
defined in section 3(a)(5)(A) of the Act, whether acting
in its individual or fiduciary capacity; any broker or
dealer registered pursuant to section 15 of the
Securities Exchange Act of 1934; any insurance company
as defined in section 2(13) of the Act; any investment
company registered under the Investment Company Act of
1940 (the "1940 Act") or a business development company
as defined in section 2(a)(48) of the 1940 Act; any
Small Business Investment Company licensed by the U.S.
Small Business Administration under section 301(c) or
(d) of the Small Business Investment Act of 1958; any
plan established and maintained by a state, its
political subdivisions for the benefit of its employees,
if such plan has total assets in excess of $5,000,000;
any employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974
("ERISA"), if the investment decision is made by a plan
fiduciary, as defined in section 3(21) of ERISA, which
is either a bank, savings and loan association,
insurance company, or registered investment adviser, or
if the employee benefit plan has total assets in excess
of $5,000,000; or, if a self-directed plan, with
investment decisions made solely by persons that are
accredited investors;
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___ d. any private business development company
as defined in section 202(a)(22) of the Investment
Advisers Act of 1940;
___ e. any organization described in section
501(c)(3) of the Internal Revenue Code, corporation,
Massachusetts or similar business trust, or partnership,
not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of
$5,000,000;
___ f. any director, executive officer, or
general partner of the Company;
X g. any entity in which all of the equity
owners are accredited investors; or
___ h. any trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in
section 230.506(b)(2)(ii) of Regulation D under the Act.
IN WITNESS WHEREOF, the undersigned has executed this Accredited Investor
Certificate as of the 10th day of June, 1999.
XXXXXXXXX VENTURE CAPITAL, LLC
BY: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
----------------------------
Xxxxxx X. Xxxxxxxxx, Xx.
Managing Member
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