EXHIBIT 10.1
------------
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of June 5, 2002, by
and among Able Laboratories, Inc., a corporation organized under the laws of the
State of Delaware (the "Company"), with headquarters located at 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxxx 00000, and ________ (the "Purchaser").
WHEREAS:
A. The Company and the Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Section 4(2) of the Securities Act of 1933, as amended (the "Securities
Act").
B. The Company desires to sell and issue to the Purchaser, and the
Purchaser desires to purchase, for the purchase price set forth at the end of
this Agreement, one or more "Units," as hereinafter defined.
NOW, THEREFORE, the Company and the Purchaser hereby agree as follows:
1. PURCHASE AND SALE OF UNITS
--------------------------
a. Purchase of Units. Subject to the terms and conditions hereof, the
undersigned (the "Purchaser") agrees to purchase the number of Units set forth
at the end of this Agreement, at a purchase price of $10,000 per unit. Each Unit
shall consist of:
(i) One $10,000 unsecured 12% promissory note (the "Note")
in the form attached hereto as Exhibit A; and
(ii) One three year warrant to purchase 740 shares of common
stock of Able Laboratories, Inc. (the "Company") par value $0.01 per share
("Common Stock") of the Company, at an exercise price of $5.10 per share (the
"Warrant," and together with the Note, the "Securities") in the form attached
hereto as Exhibit B.
The Purchaser hereby tenders the amount set forth at the end of this
Agreement in the form of a check payable to the order of the Company or a wire
transfer, in full payment of the purchase price for such Units.
b. Closing. The closing of the sale of the Units shall occur as of
June 14, 2002, or such other time as the Company and a majority in interest of
the Purchasers may agree. The sum tendered herewith pursuant to paragraph (a)
will promptly be remitted to the Company, or third parties for the account of
the Company, for its use. Promptly after such sum is remitted to the Company,
the Company will cause a certificate for each of the Note and the Warrant
purchased hereunder by the undersigned to be issued in the name of and delivered
to the undersigned.
c. Acceptance of Agreement. This agreement shall be accepted by the
Company when it is signed on behalf of the Company and the subscription price
tendered concurrently herewith is transferred to or for the account of the
Company (the "Closing"). The Company may refuse to accept any subscription, in
whole or in part, in its sole discretion. If the Company rejects a subscription,
in whole or in part, it will refund the purchase price for the rejected portion
of the subscription.
2. PURCHASER'S REPRESENTATIONS AND WARRANTIES
------------------------------------------
The Purchaser represents and warrants to the Company that:
a. Investment Purpose. It is purchasing the Securities for its own
account for investment only and not with a present view towards the public sale
or distribution thereof, except pursuant to sales that are exempt from the
registration requirements of the Securities Act and/or sales registered under
the Securities Act. The Purchaser understands that the Purchaser must bear the
economic risk of this investment indefinitely, unless the Securities are
registered pursuant to the Securities Act and any applicable state securities or
blue sky laws or an exemption from such registration is available, and that the
Company has no present intention of registering any such Securities.
b. Accredited Investor Status. The Purchaser is an "accredited
investor" as defined in Rule 501(a) promulgated under the Securities Act, by
reason of meeting one of the qualifications set forth on the "Accredited
Investor Questionnaire" attached to this Subscription Agreement as Schedule A.
c. Reliance on Exemptions. The Purchaser understands that the
Securities are being offered and sold to the Purchaser in reliance upon specific
exemptions from the registration requirements of United States federal and state
securities laws and that the Company is relying upon the truth and accuracy of,
and the Purchaser's compliance with, the representations, Notes, agreements,
acknowledgments and understandings of the Purchaser set forth herein in order to
determine the availability of such exemptions and the eligibility of the
Purchaser to acquire the Securities.
d. Information. The Purchaser and its counsel or representative, if
any, have been furnished all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of the
Securities which have been requested by such Purchaser or its counsel or
representative. The Purchaser and its counsel, if any, have been afforded the
opportunity to ask questions of the Company and have received what such
Purchaser believes to be complete and satisfactory answers to any such
inquiries.
e. Speculative Investment. The Purchaser has been informed and
understands that this investment involves a high degree of risk. In particular,
the Purchaser has read and carefully considered the information set forth in all
of the "SEC Documents," as hereinafter defined.
f. Governmental Review. The Purchaser understands that no United
States federal or state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of the Securities.
g. Transfer or Resale. The Purchaser understands that the Securities
have not been and are not being registered under the Securities Act or any state
securities laws, and may not be transferred unless (a) subsequently registered
thereunder, or (b) the Purchaser shall have delivered to the Company an opinion
of counsel (which opinion shall be in form, substance and scope customary for
opinions of counsel in comparable transactions) to the effect that the
Securities to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration. Neither the Company nor any other
-2-
person is under any obligation to register the Securities under the Securities
Act or any state securities laws or to comply with the terms and conditions of
any exemption thereunder.
h. Legends. The Purchaser understands that the Securities may bear a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of the certificates for such Securities):
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended. The securities have been
acquired for investment and may not be sold, transferred or assigned in
the absence of an effective registration statement for the securities
under said Act, or an opinion of counsel, in form, substance and scope
customary for opinions of counsel in comparable transactions, that
registration is not required under said Act or unless the Company is
provided with reasonable assurances that the securities were sold
pursuant to Rule 144 under said Act.
The legend set forth above shall be removed and the Company shall issue
a certificate without such legend to the holder of any Security upon which it is
stamped, if (a) the resale of such Security is registered under the Securities
Act, or (b) such holder provides the Company with an opinion of counsel, in
form, substance and scope customary for opinions of counsel in comparable
transactions, to the effect that a public sale or transfer of such Security may
be made without registration under the Securities Act.
i. Authorization; Enforcement. This Agreement has been duly and
validly authorized, executed and delivered on behalf of the Purchaser and
constitutes the valid and binding agreements of the Purchaser enforceable in
accordance with its terms.
j. Location of Purchaser. The Purchaser has advised the Company in
writing with respect to the jurisdiction wherein the investment decision
regarding the Purchaser's acquisition of the Securities has been made.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to the Purchaser that:
a. Organization and Qualification. The Company is a corporation duly
organized and existing in good standing under the laws of the jurisdiction in
which it is incorporated, and has the requisite corporate power to own its
properties and to carry on its business as now being conducted. The Company is
duly qualified as a foreign corporation to do business and is in good standing
in every jurisdiction where the failure so to qualify would have a Material
Adverse Effect. "Material Adverse Effect" means any material adverse effect on
the operations, properties, condition (financial or otherwise) or prospects of
the Company and its subsidiaries, taken as a whole on a consolidated basis or on
the ability of the Company to perform its obligations in connection with the
transactions contemplated hereby on a timely basis.
b. Authorization; Enforcement. The Company has the requisite corporate
power and authority to enter into and perform this Agreement, to issue and sell
the Securities in accordance with the terms hereof, and to issue the Warrant
Shares upon exercise of the Warrant in accordance with their terms. The
execution, delivery and performance of this Agreement by the Company and the
consummation by it of the transactions contemplated hereby and thereby
(including, without limitation,
-3-
the issuance of the Note and the Warrant and the issuance and reservation for
issuance of the Warrant Shares) have been duly authorized by the Company's Board
of Directors and no further consent or authorization of the Company, its Board
of Directors, or its stockholders is required; this Agreement has been duly
executed and delivered by the Company; and this Agreement constitutes the valid
and binding obligations of the Company enforceable against the Company in
accordance with its respective terms. The Warrant Shares have been reserved for
issuance and, when issued upon conversion of the Note and payment of the
exercise price therefor in accordance with the terms thereof, will be validly
issued, fully paid and non-assessable.
c. SEC Documents, Financial Statements. Since December 31, 2000, the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (all of the foregoing, filed prior to the date hereof and after December
31, 2000, and all exhibits included therein and financial statements and
schedules thereto and documents (other than exhibits) incorporated by reference
therein, together with any registration statements or other documents filed by
the Company pursuant to the Securities Act during such time, being hereinafter
referred to herein as the "SEC Documents"). As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the
Exchange Act or the Securities Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. As of their respective dates, the financial statements of the
Company included in the SEC Documents complied in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto.
d. No General Solicitation. Neither the Company nor any person acting
for the Company has conducted any "general solicitation," as such term is
defined in Regulation D, with respect to any of the Securities being offered
hereby.
e. Blue Sky Laws. The Company shall take such action as the Company
shall reasonably determine is necessary to qualify the Securities for sale to
the Purchaser pursuant to this Agreement under applicable securities or "blue
sky" laws of the states of the United States or obtain exemption therefrom, and
shall provide evidence of any such action so taken to the Purchaser.
f. Additional Information. Upon the written request of the Purchaser
while holding the Note, the Company shall send the following reports to the
Purchaser: a copy of its Annual Report on Form 10-K, its Quarterly Reports on
Form 10-Q, any proxy statements, any Current Reports on Form 8-K and any press
releases issued by the Company or any of its subsidiaries.
4. GOVERNING LAW; MISCELLANEOUS
----------------------------
a. Governing Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of The Commonwealth of Massachusetts
applicable to contracts made and to be performed therein, without regard of its
conflict of laws principles. The parties consent to the jurisdiction of the
United States District Courts for the District of Massachusetts in any suit or
proceeding based on or arising under this Agreement and agree that all claims in
respect of such suit or proceeding may be
-4-
determined in such court. The parties irrevocably waive the defense of an
inconvenient forum to the maintenance of such suit or proceeding. The parties
further agree that service of process mailed by first class mail shall be deemed
in every respect effective service of process in any suit or proceeding arising
hereunder. Nothing herein shall affect a party's right to serve process in any
other manner permitted by law. The parties agree that a final non-appealable
judgment in any such suit or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on such judgment or in any other lawful manner.
b. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other parties.
c. Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
e. Entire Agreement; Amendments. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Purchaser make any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived other than by an instrument in
writing signed by the party to be charged with enforcement and no provision of
this Agreement may be amended other than by an instrument in writing signed by
the Company and the Purchaser.
f. Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier, overnight delivery
service or by confirmed telecopy, and shall be effective five days after being
placed in the mail, if mailed, or upon receipt or refusal of receipt, if
delivered personally or by courier, overnight delivery service or confirmed
telecopy, in each case addressed to a party. The addresses for such
communications shall be:
If to the Company:
Able Laboratories, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxxx
with a copy to:
Xxxxx, Xxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
-5-
If to Purchaser, to the address set forth on the signature page hereof.
Each party shall provide notice to the other parties of any change in
address.
g. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. Neither
the Company nor the Purchaser shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other.
h. Publicity. The Purchaser shall not make any press release or other
public statement concerning the transactions contemplated hereby without the
prior written consent of the Company.
i. Further Assurances. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
-6-
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
PURCHASER:
By:
------------------------------
Name:
----------------------------
Principal amount and purchase
price of Note:
$
-------------------
[INITIAL]
------------
Notice Address:
----------------------------------
----------------------------------
Telecopy:
-------------------------
ACCEPTED:
ABLE LABORATORIES, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
-7-
SCHEDULE A
QUESTIONNAIRE
-------------
INSTRUCTIONS
This Questionnaire is being given to the person who has expressed an
interest in purchasing Units of the Company. The purpose of this Questionnaire
is to determine whether you meet certain standards, because the Units to be
offered by the Company have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), and will be sold only to persons who
are "accredited investors," as that term is defined in Rule 501(a) of Regulation
D promulgated under the Securities Act.
Your answers will be kept confidential at all times. However, you
hereby agree that the Company may present this Questionnaire to such parties as
it deems appropriate in order to assure itself that the offer and sale of Units
to you will not result in violations of federal or state securities laws which
are being relied upon by the Company in connection with the offer and sale
thereof.
INSTRUCTIONS: Please type or clearly print your answer, and state "none" or "not
applicable" when appropriate. Please complete Section A and each other section
you are requested to complete by Question A3. If there is insufficient space for
any of your answers, please attach additional pages. If the Units are to be
owned by more than one individual or by a corporation or partnership, you may
need extra copies of this Questionnaire. You may use photocopies or request
extra copies from the Company.
SECTION A: SUBSCRIBER INFORMATION
---------
Al. Name(s) of Subscriber(s):
A2. Number of Units
Subscribed for: $___________________
A3. Manner of Ownership of Securities:
One Individual.......................... Please complete Section A, B, C
---- and, if applicable, D, E and F.
Husband and Wife
Tenants by the Entirety................. Please have one spouse complete
---- Sections A, B, and if
applicable, D, E and F. Please
have both spouses complete
Section C.
Tenants in Common....................... Please have each individual
---- separately complete Sections A,
B, and C and if applicable, D,
E and F.
Joint Tenants with
Right of Survivorship
Two or More Individuals
(but not husband and wife).............. Please have each individual
---- separately complete Sections A,
B, and C and if applicable, D,
E and F.
Corporate Ownership..................... Please complete Sections A, B, D
---- and, if applicable, E and F for
the corporation. Please have
each person who owns an equity
interest in the corporation
separately complete Sections B
and, if applicable, C, D, E
and F.
Partnership Ownership................... Please complete Sections A, B
---- and D, and have each general
partner and limited partner
separately complete Sections B,
C, D, E and F, if applicable.
Trust Ownership......................... Please complete Sections A, B
---- and F, if applicable, and have
each beneficiary and trustee of
the trust separately complete
Sections B, C, D, E and F, if
applicable.
SECTION B: ACCREDITED INVESTOR STATUS
---------
B1. Please check one or more of the following definitions of "accredited
investor," if any, which applies to you. If none of the following
applies to you, please leave a blank.
____ (a) A bank as defined in Section 3(a)(2) of the Securities Act, or any
savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Securities Act whether acting in its
individual or fiduciary capacity; any broker or dealer registered
pursuant to Section 15 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); an insurance company as defined in
Section 2(13) of the Securities Act; an investment company
registered under the Investment Company Act of 1940 or a business
development company as defined in Section 2(a)(48) of that act; a
Small Business 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, or its political subdivisions, or any
agency or instrumentality of a state or its political subdivisions
for the benefit of its employees, if such plan has total assets in
excess of $5,000,000; any employee benefit plan within the meaning
of the Employee Retirement Income Security Act of 1974, if the
investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such act, which is either a bank, savings and
loan association, insurance company, or registered investment
advisor, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited investors.
____ (b) A Private Business Development Company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940.
____ (c) An organization described in Section 501(c)(3) of the Internal
Revenue Code or 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.
____ (d) A natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of purchase exceeds
$1,000,000.
-2-
____ (e) A natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with
that person's spouse in excess of $300,000 in each of those years
and has a reasonable expectation of reaching the same income level
in the current year.
____ (f) 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 Rule 506(b)(2)(ii) of Regulation D of the Securities Act.
____ (g) Any entity in which all of the equity owners are accredited
investors.
____ (h) Any director or executive officer of the Company.
SECTION C: INDIVIDUAL INFORMATION
---------
C1. General Information:
Name:________________________________________________________________
Age:_____________ Social Security Number:____________________________
Marital Status:___________________ Spouse's Name:____________________
Citizenship:_________________
If the Units are to be owned by two or more individuals (not husband and wife),
are you related to any other co-owner(s)?
Yes______ No______
If yes, please explain the relationship(s):
C2. Principal Residence:
Address:____________________________________________________________
Number Street
____________________________________________________________________
City State Zip code
Mailing Address (if other than Principal Residence above):
Address:____________________________________________________________
Number Street
____________________________________________________________________
City State Zip code
Telephone Number: ( )
-----------------------------------
-3-
C3. Current Employment or Business Activity: Company Name:
Company Name:_______________________________________________________
Address:____________________________________________________________
Number Street
Telephone Number: ( )
-----------------------------------
Principal Business:_________________________________________________
Position and Title:_________________________________________________
Description of Duties and Responsibilities:_________________________
Length of Time in Present Position:_________________________________
Is the company publicly owned? Yes_____ No_____
C4. Education: Please describe your business and/or professional education
or training, listing any schools you have attended and degrees you have
received.
DEGREES/
DATES SCHOOL MAJOR YEAR RECEIVED
================================================================================
C5. Prior Employment or Business Activity: Please describe your prior
employment or principal business activities during the last five years,
providing all information requested below.
COMPANY NAME PRINCIPAL POSITION DESCRIPTION OF DUTIES
DATES AND ADDRESS BUSINESS & TITLE AND RESPONSIBILITIES
================================================================================
C6. The undersigned will provide a financial statement if requested by
the Company.
C7. Net worth, inclusive of the net worth of your spouse and inclusive of
the value of your principal residence, furnishings therein and personal
automobiles (IT IS IMPORTANT THAT YOU CHECK THE HIGHEST APPLICABLE
AMOUNT):
( ) less than $100,000 ( ) $100,000 to $149,999
( ) $150,000 to $199,999 ( ) $200,000 to $249,999
( ) $250,000 to $349,999 ( ) $350,000 to $699,999
( ) $700,000 to $799,999 ( ) $800,000 to $1,000,000
( ) over $1,000,000
-4-
C8. Net worth: Your net worth, inclusive of the net worth of your spouse
and excluding the value of your principal residence, furnishings
therein and personal automobiles:
( ) less than$100,000 ( ) $100,000 to $149,999
( ) $150,000 to $199,999 ( ) $200,000 to $249,999
( ) $250,000 to $349,999 ( ) $350,000 to $699,999
( ) $700,000 to $799,999 ( ) $800,000 to $1,000,000
( ) over $1,000,000
C9. Indicate (a) your individual income from all sources for the calendar
years 1999, 2000 and 2001 and estimated income for 2002 or (b) your
joint income with your spouse from all sources for the calendar years
1999, 2000 and 2001 and estimated income for 2002 (IT IS IMPORTANT THAT
YOU CHECK THE HIGHEST APPLICABLE AMOUNT):
(a) individual income:
$ 60,000 $100,001 $150,000 $200,000
to to to to $300,000
$100,000 $149,999 $199,999 $299,999 and over
--------------------------------------------------------------
1999 ( ) ( ) ( ) ( ) ( )
2000 ( ) ( ) ( ) ( ) ( )
2001 ( ) ( ) ( ) ( ) ( )
2002 ( ) ( ) ( ) ( ) ( )
(b) joint income:
$ 60,000 $100,001 $150,000 $200,000
to to to to $300,000
$100,000 $149,999 $199,999 $299,999 and over
--------------------------------------------------------------
1999 ( ) ( ) ( ) ( ) ( )
2000 ( ) ( ) ( ) ( ) ( )
2001 ( ) ( ) ( ) ( ) ( )
2002 ( ) ( ) ( ) ( ) ( )
-5-
C10. (a) Was some portion of your income during your last taxable year
taxed at the highest rate for federal income tax purposes?
Yes No
--- ---
(b) Do you anticipate that some portion of your income during your
current taxable year will be taxed at the highest rate for federal
income tax purposes?
Yes No
--- ---
C11. Investment experience:
(a) The frequency with which you invest in marketable securities is:
( ) often ( ) occasionally ( ) never
(b) The frequency with which you invest in unmarketable securities
(such as the Shares) is:
( ) often ( ) occasionally ( ) never
(c) Please provide any additional information that would demonstrate
that you have sufficient knowledge and experience in financial and business
matters to be capable of evaluating the merits and risks involved with an
investment in non-marketable securities.
SECTION D: CORPORATE OFFEREES OR PARTNERSHIP OFFEREES
---------
D1. General Information
Legal Name of Corporation or Partnership:
-----------------------------
Fictitious name:
------------------------------------------------------
State of Incorporation:
-----------------------------------------------
Date of Incorporation:
------------------------------------------------
Federal I.D. Number:
--------------------------------------------------
Fiscal Year Ends:
-----------------------------------------------------
Number of Equity Owners:
----------------------------------------------
Name and Title of Executive Officer
Executing Questionnaire:
----------------------------------------------
-6-
D2. Business Address:
-----------------------------------------------------
Mailing Address (if different):
---------------------------------------
Telephone Number: ( )
--- -----------------------------------------------
D3. Name of Primary Bank:
-------------------------------------------------
Address:
--------------------------------------------------------------
Telephone Number: ( )
--- -----------------------------------------------
Account Type and Number:
----------------------------------------------
Person Familiar with your Account:
------------------------------------
Was the corporation or partnership formed for the specific purpose of
purchasing securities?
______ Yes ______ No
Check if applicable to the corporation:
Subchapter S _______ Professional ______
D4. The undersigned represents and warrants as follows:
(a) The corporation or partnership, as the case may be, has been duly
incorporated or formed (if a partnership), is validly existing as
a corporation or partnership in good standing under the laws of
the jurisdiction of its incorporation or formation with full power
and authority to enter into the transactions contemplated by the
Subscription Agreement;
(b) (i) The officers or partners of the undersigned who, on behalf of
the undersigned, have considered the purchase of the Units and the
advisers, if any, of the corporation or the partnership, as the
case may be, in connection with such consideration are named below
in this Questionnaire, and such officers and advisors or partners,
if any, were duly authorized to act for the corporation or the
partnership in reviewing such investment;
(ii)The names and positions of the officers or partners of the
undersigned who, on its behalf, have reviewed the purchase of the
Units are as follows:
__________________________________________________________
__________________________________________________________
__________________________________________________________
-7-
(iii) In evaluating the merits and risks of the purchase of the
Units, the corporation or the partnership, as the case may be,
intends to rely upon the advice of, or will consult with, the
following persons:
__________________________________________________________
__________________________________________________________
__________________________________________________________
(c) The officers of the corporation (if not accredited investors) or
the partners of the partnership who, on its behalf, have
considered the purchase of the Units and the advisors, if any, of
the corporation or the partnership who, in connection with such
consideration, together have such knowledge and experience in
financial and business matters that such officer(s), partner(s)
and advisor(s), if any, together are capable of evaluating the
merits and risks of the purchase of Units and of making an
informed investment decision;
(d) Together with any corporation or group of corporations with which
it files a consolidated federal income tax return, the undersigned
has reserves and/or net worth adequate to satisfy any tax or other
liabilities arising from its liability with respect to the
investment and the operation thereof,
(e) The net worth of the corporation or the partnership is in excess
of $___________;
(f) The corporation or the partnership has had, during each of the
past two fiscal or tax years, gross income from all sources of at
least $_____________________ and $_____________respectively;
(g) The undersigned expects the corporation or the partnership to have
during the current fiscal or tax year gross income from all
sources of at least $______________________;
(h) The undersigned knows of no pending or threatened litigation the
outcome of which could adversely affect the answer to any question
hereunder; and
(i) Indicate the following if a partnership offeree:
(1) The date the partnership was formed and state of formation:
(2) The names of each partner in the partnership:
__________________________________________________________
__________________________________________________________
PLEASE HAVE EACH INDIVIDUAL PARTNER EXECUTE A SEPARATE QUESTIONNAIRE.
-8-
SECTION E: TRUST OFFEREES
---------
El. General Information:
Legal Name:
------------------------------------------------------------
State of Formation:
----------------------------------------------------
Date of Formation:
-----------------------------------------------------
Federal I.D. Number: Fiscal Year Ends:
--------------- ----------------
Number of Beneficiaries:
-----------------------------------------------
Principal Purpose:
-----------------------------------------------------
Was the trust formed for the specific purpose of purchasing Units?
______Yes ______ No
E2. Business Address:
------------------------------------------------------
Telephone Number: ( )
--- ---------------------
Mailing Address:
------------------------------------------------------
E3. Authorization: If the trust was established in connection with a
deferred compensation plan, please attach a copy of the
trust's organizational documents and a properly
certified copy of the resolutions adopted by the trust's
board of directors authorizing the trust to purchase the
Unit(s) and authorizing the trustee named below to
execute on behalf of the trust all relevant documents
necessary to subscribe for and purchase the Unit(s). In
all cases, please attach a properly certified copy of
the resolutions adopted by the trustees of the trust
authorizing the trust to purchase the Unit(s) and
authorizing the trustee named below to execute on behalf
of the trust all relevant documents necessary to
subscribe for and purchase the Unit(s).
Name of Authorized Trustee:
--------------------------------------------
E4. Name of Primary Bank:
--------------------------------------------------
Address:
---------------------------------------------------------------
-----------------------------------------------------------------------
Telephone Number: ( )
--- -----------------------------------------------
Account Type and Number:
-----------------------------------------------
Person Familiar with your Account:
-------------------------------------
-9-
SECTION F: QUALIFIED PENSION PLAN ("PLAN") OFFEREES
---------
F1. Please initial the appropriate space below:
_____ a. The Plan requires the investment of each (initial) beneficiary or
participant to be held in a segregated account and the Plan allows each
beneficiary or participant to make his own investment decisions and,
the decision to purchase the Unit(s) has been made by the beneficiary
or the participant and such beneficiary or participant is an accredited
investor (Please have each such beneficiary or participant execute a
separate Questionnaire)
OR
_____ b. The investment decisions made for the Plan are made by a plan
fiduciary, whether a bank, an insurance company, or a registered
investment advisor
OR
_____ c. The Plan has total assets exceeding $5,000,000.
F2. General Information:
Legal Name:
------------------------------------------------------------
State of Formation:
---------------------------------------------------
Date of Formation:
----------------------------------------------------
Federal I.D. Number: Fiscal Year Ends:
---------------- -------------
Number of Beneficiaries:
-----------------------------------------------
Principal Purpose:
-----------------------------------------------------
F3. Business Address:
------------------------------------------------------
Telephone Number:( )
--- ------------------------------------------------
Mailing Address:
-------------------------------------------------------
F4. Authorization: If the investment decision is being made by a
beneficiary or participant of a Plan, please attach applicable trust
documents which permit each beneficiary or participant to make his own
investment decisions. In all other cases, please attach a properly
certified copy of the resolutions adopted by the trustees of the Plan
trust authorizing the Plan to purchase the Unit(s) and authorizing the
fiduciary named below to execute on behalf of the Plan all relevant
documents necessary to subscribe for and purchase the Unit(s).
Name of Authorized Fiduciary:
------------------------------------------
F5. Name of Primary Bank:
--------------------------------------------------
Address:
---------------------------------------------------------------
Telephone Number: ( )
--- -----------------------------------------------
Account Type and Number:
-----------------------------------------------
Person Familiar with your Account:
-------------------------------------
-10-
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE FOREGOING STATEMENTS ARE
TRUE AND ACCURATE TO THE BEST OF THE INFORMATION AND BELIEF OF THE UNDERSIGNED
AND THE UNDERSIGNED WILL PROMPTLY NOTIFY THE COMPANY OF ANY CHANGES IN THE
FOREGOING ANSWERS.
THE UNDERSIGNED HEREBY AGREES TO INDEMNITY AND HOLD HARMLESS THE COMPANY AND ITS
RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ATTORNEYS
AGAINST ANY AND ALL LOSSES, CLAIMS, DEMANDS, LIABILITIES AND EXPENSES (INCLUDING
REASONABLE LEGAL OR OTHER EXPENSES) INCURRED BY EACH SUCH PERSON IN CONNECTION
WITH DEFENDING OR INVESTIGATING ANY CLAIMS OR LIABILITIES, WHETHER OR NOT
RESULTING IN ANY LIABILITY TO SUCH PERSON TO WHICH ANY SUCH INDEMNIFIED PARTY
MAY BECOME SUBJECT UNDER THE SECURITIES ACT, UNDER ANY OTHER STATUTE, AT COMMON
LAW OR OTHERWISE, INSOFAR AS SUCH LOSSES, CLAIMS, DEMANDS, LIABILITIES AND
EXPENSES (A) ARISE OUT OF OR ARE BASED UPON ANY UNTRUE STATEMENT OR ALLEGED
UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN THIS QUESTIONNAIRE OR (B) ARISE
OUT OF OR ARE BASED UPON ANY BREACH OF ANY REPRESENTATION, WARRANTY OR AGREEMENT
CONTAINED HEREIN.
FOR INDIVIDUALS:
----------------
------------------------------------
(Print Name)
Dated: ____________, 200__
------------------------------------
(Signature)
FOR CORPORATIONS:
-----------------
------------------------------------
Name of Company
------------------------------------
Name of Executive Officer Executing
Questionnaire
Dated: ____________, 200__
------------------------------------
Signature of Officer
FOR PARTNERSHIPS:
-----------------
------------------------------------
Name of Partnership
------------------------------------
Name of Partner executing
Questionnaire
-11-
Dated: ____________, 200__
------------------------------------
Signature of Partner executing
Questionnaire
FOR TRUSTS:
----------
------------------------------------
Name of Trust
------------------------------------
Name of Authorized Trustee
Executing Questionnaire
Dated: ____________, 200__
------------------------------------
Signature of Authorized Trustee
FOR QUALIFIED PENSION PLANS:
----------------------------
------------------------------------
Name of Qualified Pension Plan
and
------------------------------------
Name of Plan Fiduciary
executing Questionnaire
Dated: ____________, 200__
------------------------------------
Signature of Plan Fiduciary
executing Questionnaire
or
------------------------------------
Name of Plan Beneficiary
executing Questionnaire
and
Dated: ____________, 200__
------------------------------------
Signature of Plan Beneficiary
executing Questionnaire
-12-
