EXHIBIT 4.1
Form of Subscription Agreement Between the Registrant and the Several
Purchasers
MATRITECH, INC.
SUBSCRIPTION INSTRUCTIONS
(PLEASE READ CAREFULLY)
NO PERSON WILL BE ACCEPTED AS A PURCHASER PRIOR TO A CLOSING OF THE
OFFERING. THE COMPANY RESERVES THE RIGHT TO REJECT ANY SUBSCRIPTION, IN WHOLE OR
IN PART, OR TO ALLOT TO ANY PROSPECTIVE PURCHASER FEWER THAN THE NUMBER OF UNITS
SUBSCRIBED FOR BY SUCH PURCHASER. ANY REPRESENTATION TO THE CONTRARY IS
UNAUTHORIZED AND MUST NOT BE RELIED UPON.
A minimum of 375,000 and a maximum of 800,000 units (the "Units") are being
offered for $8.00 per Unit, each Unit consisting of four shares (the "Shares")
of Matritech, Inc. (the "Company") common stock having a par value of $0.01 per
share (the "Common Stock") and a warrant (the "Warrant") to purchase one share
of common stock (a "Warrant Share"). The Warrants are exercisable until
November 30, 2002 at an exercise price per share equal to $3.00.
I. This Subscription Booklet contains all the materials necessary for you
(the "Purchaser") to purchase the Units. This material is arranged in the
following order:
Subscription Agreement
- A. Subscription Package for an INDIVIDUAL investor
- B. Subscription Package for a TRUST investor
- C. Subscription Package for a PARTNERSHIP investor
- D. Subscription Package for a CORPORATE investor
- E. Subscription Package for a RETIREMENT investor
- F. Internal Revenue Service Form W-9
Each Subscription Package contains:
(1) a Questionnaire designed to enable you to demonstrate that you meet
the minimum legal requirements under federal and state securities laws to
purchase the Units; and
(2) a Signature Page for the Questionnaire and the Subscription Agreement
containing representations relating to your subscription.
Section F contains an Internal Revenue Service Form W-9: "Request for
Taxpayer Identification Number and Certification" for U.S. federal income tax
purposes only.
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II. After reading the Subscription Agreement, please turn to the appropriate
Subscription Package (A, B, C, D or E) and fill in all applicable information.
You must complete and sign ALL of the documents in the appropriate section.
This includes: (a) the Questionnaire and (b) the Signature Page. You also
must complete the Internal Revenue Service Form W-9: "Request for Taxpayer
Identification Number and Certification" found in Section F. Once you have
completed the appropriate portions of the Subscription Booklet and (if
applicable) the Form W-9 found in Section F, please return the entire
Subscription Booklet, the Form W-9 and any additional required documents (as
described in the Questionnaire) to the Placement Manager at its address set
forth below in Section IV. If you are a non-U.S. person, in lieu of the Form W-9
you will be required to fill out the appropriate Form W-8 and any additional
required documents.
III. Payment for the Units: Payment for the Units will be held in a segregated
account maintained by Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP ("TH&T"), counsel to the
Company. TH&T will hold the Purchasers' funds pending the closing and will not
release the Purchasers' funds to the Company until it has received written
notice from Sunrise Securities Corp. that all the conditions to closing have
been satisfied. The Purchaser shall forthwith cause the full amount of the
subscription price to be paid by check, payable to Matritech, Inc. or wire
transferred to TH&T at: Citizens Bank, 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000, ABA#
0000-0000-0, Account Name: Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP Agents And Attorneys,
Account # 110785-312-2, Reference: 98/RCK/8395/45.
If the subscription price is paid by wire transfer, the Purchaser shall
(i) include the Purchaser's name in the wire transfer instructions; and (ii)
request from the bank or other financial institution that is originating the
transfer the federal wire number with respect to the subscription and retain
that number for future reference. You will not earn interest on your money that
is deposited in the escrow account, unless and until you deliver to TH&T a
completed Form W-9 or applicable Form W-8.
IV. Send all complete documents together with the requisite payment to the
Placement Manager at the following address:
Sunrise Securities Corp.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
V. Questions regarding completion of subscription documents should be
directed to Xxxxx Xxxxxxxx at the above address of Sunrise Securities Corp. at
(000) 000-0000.
PLEASE PRINT IN INK OR TYPE ALL INFORMATION
FAILURE TO COMPLY WITH THE ABOVE INSTRUCTIONS WILL CONSTITUTE AN INVALID
SUBSCRIPTION, WHICH, IF NOT CORRECTED, WILL RESULT IN THE REJECTION OF YOUR
SUBSCRIPTION. EVEN IF CORRECTED, THE DELAY MAY RESULT IN (1) THE ACCEPTANCE OF
PURCHASERS WHOSE
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SUBSCRIPTION BOOKLETS WERE INITIALLY RECEIVED BY THE PLACEMENT
MANAGER AFTER YOURS OR (2) THE OFFERING BEING CLOSED WITHOUT YOUR SUBSCRIPTION
BEING CONSIDERED BY THE COMPANY.
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SUBSCRIPTION AGREEMENT
---------------------------------------------------------
MATRITECH, INC.
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A MINIMUM OF 375,000 UNITS
AND
A MAXIMUM OF 800,000 UNITS
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To: Matritech, Inc.
This Subscription Agreement is made between Matritech, Inc., a De1aware
corporation (the "COMPANY"), and the undersigned prospective purchaser who is
subscribing hereby for [________] units. Each "UNIT" shall be composed of four
shares (the "SHARES") of Matritech Common Stock, $0.01 par value (the "COMMON
STOCK") and a warrant (the "WARRANT") to purchase one share of Common Stock (a
"WARRANT SHARE"). The Warrants are exercisable until November 30, 2002 at an
exercise price per share equal to $3.00. A form of the Warrant is attached as
Exhibit C to the Confidential Private Placement Memorandum (the "MEMORANDUM")
for the offering of the Units.
The purchase price per Unit (the "PURCHASE PRICE") is $8.00. This
subscription is submitted to you in accordance with and subject to the terms and
conditions described in this Subscription Agreement relating to the offering
(the "OFFERING") of a minimum of 375,000 Units and a maximum of 800,000 Units.
The minimum investment is 3,000 Units, which minimum amount may be reduced by
Sunrise Securities Corp. (the "PLACEMENT MANAGER") with the agreement of the
Company.
In consideration of the Company's agreement to sell the Units, subject to
the discretion of the Company and the Placement Manager, to the undersigned upon
the terms and conditions contained herein, the undersigned agrees and represents
as follows:
A. SUBSCRIPTION.
(1) The undersigned hereby irrevocably subscribes for and agrees to
purchase the number of Units indicated on the cover and signature pages hereto
at a purchase price of $9.00 per Unit. The undersigned encloses herewith a check
or has arranged for a wire transfer payable to Matritech, Inc. in the full
amount of the purchase price of the Units for which the undersigned is
subscribing (the "PAYMENT").
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(2) The undersigned understands that Payments by check as provided in
Paragraph 1 above shall be delivered to the Placement Manager and, thereafter,
such Payments will be deposited as soon as practicable in escrow for the
undersigned's benefit in a segregated account established at Citizens Bank by
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP ("TH&T"), counsel to the Company. The Payment
(or, in the case of the rejection of a portion of the undersigned's
subscription, the part of the Payment relating to such rejected portion) will be
returned promptly if the undersigned's subscription is rejected in whole or in
part. A minimum number of 375,000 Units must be subscribed for before the
initial closing of the Offering, and there may be one or more closings (each a
"CLOSING DATE") before the final closing (the "FINAL CLOSING DATE"). Upon
receipt by the Company of the requisite Payment for all Units to be purchased by
the Purchasers whose subscriptions are accepted (each, a "PURCHASER"), the
certificates for the number of Shares and Warrants purchased will be issued in
the name of each such Purchaser, and the name of such Purchaser will be
registered on the stock transfer books of the Company as the record owner of
such Shares and Warrants. The Shares, Warrants and Warrant Shares are not freely
transferable.
(3) The undersigned hereby agrees to be bound hereby upon the (i)
execution and delivery to the Company, in care of the Placement Manager, of the
signature page to the undersigned's completed questionnaire submitted by the
undersigned (the "QUESTIONNAIRE") and this Subscription Agreement and (ii)
acceptance on a Closing Date by the Company of the undersigned's subscription
(the "SUBSCRIPTION").
(4) The undersigned agrees that the Company may, in its sole and absolute
discretion, reduce the undersigned's subscription to any number of Units that in
the aggregate does not exceed the number of Units hereby applied for without any
prior notice to or further consent by the undersigned. The undersigned hereby
irrevocably constitutes and appoints the Placement Manager and each officer of
the Placement Manager, each of the foregoing acting singly, in each case with
full power of substitution, the true and lawful agent and attorney-in-fact of
the undersigned, with full power and authority in the undersigned's name, place
and stead, to amend this Subscription Agreement and the Questionnaire, including
in each case the undersigned's signature page thereto, to effect any of the
foregoing provisions of this Paragraph 4.
(5) The Company hereby agrees that if at any time prior to the earlier of
(i) thirty (30) days after the effectiveness of the Registration Statement on
Form S-3 covering the resale of the Shares and the Warrant Shares sold to the
Purchasers pursuant to this offering or (ii) one year after the Closing, it
sells shares of its Common Stock to any non-strategic investor at an effective
price of less than $2.00 per share, it will issue additional Units (the
"ADDITIONAL UNITS") to each Purchaser at no additional cost so as to make the
effective price for the Shares sold to each such Purchaser as part of the Units
and the shares of Common Stock issued to each Purchaser as part of the
Additional Units equal to not more than such lower price.
B. REPRESENTATION AND WARRANTIES.
The undersigned hereby represents and warrants to, and agrees with, the
Company and the Placement Manager and each selected dealer, if any, selected by
the Placement Manager for consultation with the Company (the "SELECTED
DEALERS"), as follows:
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(1) The undersigned has been furnished with and has carefully read the
Memorandum, including the appendices thereto and is familiar with and
understands the terms of the Offering. With respect to individual or partnership
tax and other economic considerations involved in this investment, the
undersigned has carefully considered and has, to the extent the undersigned
believes such discussion necessary, discussed with the undersigned's
professional, legal, tax, accounting and financial advisers the suitability of
an investment in the Units for the undersigned's particular tax and financial
situation and has determined that the Units being subscribed for by the
undersigned are a suitable investment for the undersigned.
(2) The undersigned acknowledges that all documents, records, and books
pertaining to this investment which the undersigned has requested have been made
available for inspection by the undersigned, and the undersigned's attorney,
accountant or adviser(s).
(3) The undersigned has performed its own due diligence and is not relying
on any information supplied by the Placement Manager. The undersigned and/or the
undersigned's adviser(s) has/have had a reasonable opportunity to ask questions
of and receive answers from a person or persons acting on behalf of the Company
concerning the Offering and all such questions have been answered to the full
satisfaction of the undersigned.
(4) The undersigned is not subscribing for Units as a result of or
subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or meeting.
(5) The undersigned: (i) has a pre-existing business relationship with
either (a) the Company or any of its officers, directors or controlling persons
or (b) the Placement Manager or any Selected Dealer and (ii) by reason of the
undersigned's business or financial experience of the undersigned's professional
advisers who are unaffiliated with and who are not compensated by the Company or
the Placement Manager or any Selected Dealer or any affiliate of any of them,
directly or indirectly, can be reasonably assumed to have the capacity to
protect the undersigned's interests in connection with an investment in the
Shares.
(6) If the undersigned is a natural person, the undersigned has reached
the age of majority in the state in which the undersigned resides, has adequate
means of providing for the undersigned's current financial needs and
contingencies, is able to bear the substantial economic risks of an investment
in the Units for an indefinite period of time, has no need for liquidity in such
investment and, at the present time, could afford a complete loss of such
investment.
(7) The undersigned or the undersigned's purchaser representative, as the
case may be, has such knowledge and experience in financial, tax and business
matters so as to enable the undersigned to utilize the information made
available to the undersigned in connection with the Offering to evaluate the
merits and risks of an investment in the Units and to make an informed
investment decision with respect thereto.
(8) The undersigned will not sell or otherwise transfer any Shares,
Warrants or Warrant Shares (collectively, the "SECURITIES") without registration
of such securities under the Securities Act of 1933, as amended (the "SECURITIES
ACT") and any applicable state securities laws or an exemption therefrom. The
Securities have not been registered under the Securities
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Act or under the securities laws of any state. The undersigned represents that
the undersigned is purchasing the Securities for the undersigned's own account,
for investment and not for resale or distribution except in compliance with the
Securities Act and such "blue sky" laws as may be applicable. The undersigned
has not offered or sold any portion of the Securities being acquired nor does
the undersigned have any present intention of dividing such Securities with
others or of selling, distributing or otherwise disposing of any portion of such
Securities either currently or after the passage of a fixed or determinable
period of time or upon the occurrence or non-occurrence of any predetermined
event or circumstance in violation of the Securities Act. The undersigned is
aware that except as provided in Section D, the Company has no obligation to
register the Securities subscribed for hereunder, or to make available an
exemption from the registration requirements pursuant to Rule 144 or any
successor rule for resale of the Securities.
(9) Further, the undersigned has carefully read and considered the matters
set forth under the caption "Risk Factors" in the Memorandum previously
delivered to the undersigned, and has taken full cognizance of and understands
all of the risks related to the purchase of the Securities. The undersigned's
financial condition is such that he is able to bear the risk of holding
Securities for an indefinite period of time, has adequate means to provide for
his current financial needs and contingencies and can risk the loss of his
entire investment in the Securities.
(10) The undersigned acknowledges that each certificate representing the
Shares and Warrant Shares contained in the Units shall be stamped or otherwise
imprinted with a legend substantially in the following form:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER UNITED
STATES FEDERAL OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED OR ASSIGNED FOR VALUE, DIRECTLY OR
INDIRECTLY, NOR MAY THE SECURITIES BE TRANSFERRED ON THE BOOKS OF THE
COMPANY, WITHOUT REGISTRATION OF SUCH SECURITIES UNDER ALL APPLICABLE
UNITED STATES FEDERAL SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE
EXEMPTION THEREFROM, SUCH COMPLIANCE AT THE OPTION OF THE COMPANY, TO BE
EVIDENCED BY AN OPINION OF SHAREHOLDER'S COUNSEL, IN FORM ACCEPTABLE TO
THE COMPANY, THAT NO VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD
RESULT FROM ANY PROPOSED TRANSFER OR ASSIGNMENT"
(11) The undersigned acknowledges and agrees that it shall not be entitled
to seek any remedies with respect to the Offering from any party other than the
Company.
(12) If this Subscription Agreement is executed and delivered on behalf of
a partnership, corporation, trust or estate: (i) such partnership, corporation,
trust or estate has the full legal right and power and all authority and
approval required (a) to execute and deliver, or authorize execution and
delivery of, this Subscription Agreement and all other instruments executed and
delivered by or on behalf of such partnership, corporation, trust or estate in
connection with the purchase of its Unit(s), (b) to delegate authority pursuant
to a power of
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attorney and (c) to purchase and hold such Unit(s); (ii) the signature of the
party signing on behalf of such partnership, corporation, trust or estate is
binding upon such partnership, corporation, trust or estate; and (iii) such
partnership, corporation or trust has not been formed for the specific purpose
of acquiring such Unit(s), unless each beneficial owner of such entity is
qualified as a qualified institutional buyer, within the meaning of Rule 144A
promulgated under the Securities Act, or an accredited investor within the
meaning of Rule 501(a) of Regulation D promulgated under the Securities Act
("REGULATION D") and has submitted information substantiating such individual
qualification.
(13) If the undersigned is a retirement plan or is investing on behalf of
a retirement plan, the undersigned acknowledges that investment in the Units
poses additional risks including the inability to use losses generated by an
investment in the Units to offset taxable income.
The undersigned shall indemnify and hold harmless the Company, the Placement
Manager and any Selected Dealer and each officer, director or control person of
any such entity, who is or may be a party or is or may be threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of or
arising from any actual or alleged misrepresentation or misstatement of facts or
omission to represent or state facts made or alleged to have been made by the
undersigned to the Company, the Placement Manager or any Selected Dealer (or any
agent or representative of any of them) or omitted or alleged to have been
omitted by the undersigned, concerning the undersigned or the undersigned's
authority to invest or financial position in connection with the Offering,
including, without limitation, any such misrepresentation, misstatement or
omission contained in the Subscription Agreement, the Questionnaire or any other
document submitted by the undersigned, against losses, liabilities and expenses
for which the Company, the Placement Manager, Selected Dealers or any officer,
director or control person of any such entity has not otherwise been reimbursed
(including attorneys' fees, judgments, fines and amounts paid in settlement)
actually and reasonably incurred by the Company, the Placement Manager, Selected
Dealers or such officer, director or control person in connection with such
action, suit or proceeding. The undersigned's liability for any indemnification
claims made hereunder shall be limited to the aggregate purchase price of the
Units purchased by the undersigned.
C. UNDERSTANDINGS.
The undersigned understands, acknowledges and agrees with the Company, the
Placement Manager and each Selected Dealer as follows:
(1) This Subscription may be rejected, in whole or in part, by the
Company, in its sole and absolute discretion, at any time before a Closing Date
notwithstanding prior receipt by the undersigned of notice of acceptance of the
undersigned's Subscription.
(2) Except as set forth in paragraph C(1) above, the undersigned hereby
acknowledges and agrees that the subscription hereunder is irrevocable by the
undersigned, that, except as required by law, the undersigned is not entitled to
cancel, terminate or revoke this Subscription Agreement or any agreements of the
undersigned hereunder and that this Subscription Agreement and such other
agreements shall survive the death or disability of the undersigned and shall be
binding upon and inure to the benefit of the parties and their heirs,
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executors, administrators, successors, legal representatives and permitted
assigns. If the undersigned is more than one person, the obligations of the
undersigned hereunder shall be joint and several and the agreements,
representations, warranties and acknowledgments herein contained shall be deemed
to be made by and be binding upon each such person and his/her heirs, executors,
administrators, successors, legal representatives and permitted assigns.
(3) No federal or state agency has made any finding or determination as to
the accuracy or adequacy of the information provided by the Company to the
undersigned in connection with the Offering, or as to the fairness of the terms
of the Offering for investment nor any recommendation or endorsement of the
Units.
(4) The Offering is intended to be exempt from registration under the
Securities Act by virtue of Section 4(2) of the Securities Act and the
provisions of Regulation D thereunder, which is in part dependent upon the
truth, completeness and accuracy of the statements made by the undersigned
herein and in the Questionnaire.
(5) The Placement Manager and the Selected Dealers will receive
compensation in connection with the Offering but none of them is guaranteeing or
assuming responsibility for the operation or possible liability of the Company,
including, without limitation, compliance by the Company, with the agreements
entered into in connection with the Offering, and none of them will supervise or
participate in the operation or management of the Company.
(6) The undersigned acknowledges that the information as to the Offering
is confidential and non-public and agrees that all such information shall be
kept in confidence by the undersigned and neither used by the undersigned for
the undersigned's personal benefit (other than in connection with this
Subscription) nor disclosed to any third party for any reason; provided,
however, that this obligation shall not apply to any such information that (i)
is part of the public knowledge or literature and readily accessible at the date
hereof, (ii) becomes part of the public knowledge or literature and readily
accessible by publication (except as a result of a breach of this provision) or
(iii) is received from third parties (except third parties who disclose such
information in violation of any confidentiality agreements or obligations,
including, without limitation, any Subscription Agreement entered into with the
Company).
(7) The representations, warranties and agreements of the undersigned
contained herein and in any other writing delivered in connection with the
transactions contemplated hereby shall be true and correct in all respects on
and as of the Closing Date of the sale of the Units as if made on and as of such
date and shall survive the execution and delivery of this Subscription Agreement
and the purchase of the Units.
(8) IN MAKING AN INVESTMENT DECISION PURCHASERS MUST RELY ON THEIR OWN
EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS
AND RISKS INVOLVED. THE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR
STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THE
OFFERING OR THIS SUBSCRIPTION AGREEMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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(9) THE SECURITIES MAY NOT BE TRANSFERRED, RESOLD OR OTHERWISE DISPOSED OF
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. PURCHASERS SHOULD BE
AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT
FOR AN INDEFINITE PERIOD OF TIME.
D. REGISTRATION OF THE SHARES AND WARRANT SHARES; COMPLIANCE WITH THE
SECURITIES ACT.
(1) The Company shall:
(a) prepare and file with the Securities and Exchange
Commission (the "SEC") a registration statement (the "REGISTRATION
STATEMENT") covering the resale of the Shares and Warrant Shares by
the Purchasers from time to time on the Nasdaq National Market or on
such securities market, exchange or system on which the Company's
Shares shall then be publicly traded, or in privately negotiated
transactions, no later than 45 days following the Final Closing
Date;
(b) agree to pay the Purchaser an amount in cash equal to (i)
1% of the aggregate purchase price of the Units sold to the
Purchaser should the Company fail to file a Registration Statement
with the SEC prior to the expiration of 45 days after the Final
Closing Date, and (ii) an equal amount for each subsequent 30-day
period thereafter that the Registration Statement is not filed with
the SEC, but in no event more than the aggregate purchase price for
such Units;
(c) use its best efforts, subject to receipt of necessary
information from the Purchasers, to cause the Registration Statement
to become effective as soon as possible thereafter;
(d) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to comply with the
provisions of the Securities Act and use its best efforts to
maintain the effectiveness of the Registration Statement until the
earlier of such time as all of the Shares have been sold pursuant
thereto or, such time as, by reason of Rue 144(k) under the
Securities Act or any other rule of similar effect, such Shares and
Warrant Shares are no longer required to be registered for the
unrestricted sale thereof by the Purchasers;
(e) furnish to the Purchasers such number of copies of
prospectuses and preliminary prospectuses in conformity with the
requirements of the Securities Act and such other documents as the
Purchasers may reasonably request, in order to facilitate the public
sale or other disposition of all or any of the Shares or Warrant
Shares held by the Purchasers, provided, however, that the
obligation of the Company to deliver copies of prospectuses or
preliminary prospectuses to the Purchasers shall be subject to the
receipt by the Company of reasonable assurances from the Purchasers
that the Purchasers will comply with
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the applicable provisions of the Securities Act and of such other
securities or blue sky laws as may be applicable in connection with
any use of such prospectuses or preliminary prospectuses;
(f) file documents required of the Company for normal blue sky
clearance in all states provided however, that the Company shall not
be required to qualify to do business or consent to service of
process in any jurisdiction in which it is not now so qualified or
has not so consented;
(g) bear all expenses in connection with the procedures in
paragraphs (a) through (d) of this Section D(1), other than
brokerage commissions or placement agent fees and fees and expenses,
if any, of counsel or other advisers to the Purchaser with respect
to the registration and resale of the Shares and Warrant Shares; and
(h) prepare and file additional listing applications for the
Shares on the Nasdaq National Market.
The Company understands that the Purchaser disclaims being an underwriter, but
the Purchaser being deemed an underwriter shall not relieve the Company of any
obligations is has hereunder.
(2) The Purchaser agrees that it will not effect any disposition of the
Shares or Warrant Shares, that would constitute a sale within the meaning of the
Securities Act except as contemplated in the Registration Statement referred to
in Section D(1) or pursuant to an available exemption from registration under
the Securities Act and applicable state securities laws, and further that as a
condition to inclusion of the Shares and Warrant Shares in the Registration
Statement the Purchaser agrees to provide to the Company such information as it
may reasonably request in order to include such Shares and Warrant Shares in
such Registration Statement.
(3) The Purchaser agrees not to make any sale of the Shares or Warrant
Shares, pursuant to the Registration Statement referred to in this Section D
without effectively causing the prospectus delivery requirements under the
Securities Act to be satisfied. The Purchaser acknowledges that there may
occasionally be times when the Company must suspend the use of the prospectus
forming a part of the Registration Statement until such time as an amendment to
such Registration Statement has been filed by the Company and declared effective
by the SEC or until the Company has amended or supplemented such prospectus. The
Company agrees to use its best efforts to cause such amended registration
statement to be declared effective and/or to deliver such amended or
supplemented prospectus as soon as possible. The Purchaser hereby covenants that
it will not sell any Shares or Warrant Shares pursuant to said prospectus
without first confirming with the Company that the Registration Statement has
not been suspended, and during any period commencing at the time at which the
Company gives the Purchaser notice of the suspension of the use of said
prospectus and ending at the time the Company gives the Purchaser notice that
the Purchaser may thereafter effect sales pursuant to said prospectus.
(4) For the purpose of this Section D(4):
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(a) the term "SELLING SHAREHOLDER" shall mean any person or
entity selling Shares or Warrant Shares pursuant to the Registration
Statement, and any affiliate thereof,
(b) the term "REGISTRATION STATEMENT" shall include any
preliminary prospectus, final prospectus, exhibit, supplement or
amendment included in or relating to the Registration Statement; and
(c) the term "UNTRUE STATEMENT" shall mean any untrue
statement or alleged untrue statement of a material fact in the
Registration Statement, or any omission or alleged omission to state
in the Registration Statement a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling Shareholder from
and against any losses, claims, damages or liabilities to which such Selling
Shareholder may become subject (under the Securities Act or otherwise) insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon, any untrue statement included
in the Registration Statement, and the Company promptly will reimburse such
Selling Shareholder for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim; provided, however, that the Company shall not be liable in any such case
to the extent that such loss, claim, damage or liability arises out of, or is
based upon, an untrue statement made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Selling
Shareholder specifically for use in preparation of the Registration Statement,
or the failure of such Selling Shareholder to comply with the covenants and
agreements contained herein; provided further, that the indemnification
contained in this Section D(4) with respect to any prospectus after it has been
amended or supplemented, shall not inure to the benefit of any Selling
Shareholder (or any person controlling such Selling Shareholder) from whom the
person asserting such loss, claim, damage, or liability shall have purchased
Shares or Warrant Shares, that are the subject thereof if, after copies thereof
have been delivered by the Company to such Selling Shareholder, such Selling
Shareholder shall have failed to send or give a copy of the prospectus as then
amended or supplemented, as the case may be, to such person at or prior to the
confirmation of such sale of such Shares or Warrant Shares, to such person, and,
if such loss, claim, damage or liability would not have arisen but for the
failure of such Selling Shareholder to deliver the same.
The Purchaser agrees to indemnify and hold harmless the Company (and each other
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, each officer of the Company who signs the Registration Statement
and each director of the Company) from and against any losses, claims, damages
or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any untrue
statement contained in the Registration Statement if such untrue statement was
made in reliance upon and in conformity with written information furnished by or
on behalf of the Purchaser specifically for use in preparation of the
Registration Statement, and the Purchaser promptly will reimburse the
9
Company (or such officer, director or controlling person), as the case may be,
for any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim. The Purchaser's
liability for any indemnification claims made hereunder shall be limited to the
aggregate purchase price of the Units purchased by the Purchaser.
Promptly after receipt by any indemnified person of a notice of a claim or
the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section D(4), such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall have been notified thereof, such indemnifying person
shall be entitled to participate therein, and, to the extent it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof. In the event that the indemnifying party shall have assume the
defense of such action, such indemnifying party shall not enter into any
compromise or settlement without the indemnified party's prior written consent,
which consent shall not be unreasonably withheld, delayed or denied.
(5) The restrictions imposed by Sections B(8) and D(2) upon the
transferability of the Shares and Warrant Shares shall cease and terminate as to
any particular Shares or Warrant Shares when such Shares or Warrant Shares shall
have been effectively registered under the Securities Act and sold or otherwise
disposed of in accordance with the intended method of disposition set forth in
the Registration Statement or at such time as an opinion of counsel satisfactory
to the Company shall have been rendered to the effect that such restrictions are
not necessary in order to comply with the Securities Act.
(6) So long as the Registration Statement is effective covering the sale
of Shares and Warrant Shares owned by the Purchaser, the Company will furnish to
the Purchaser upon request:
(a) any document filed by the Company with the SEC, with the
exception of documents for which confidential treatment has been
granted by the SEC;
(b) upon the reasonable request of the Purchaser, any other
information concerning the Company that is generally available to
the public; and
(c) an adequate number of copies of the prospectuses relating
to the resale of the Shares or Warrant Shares to supply to any party
requiring such prospectuses.
E. MISCELLANEOUS.
10
(1) All pronouns and any variations thereof used herein shall be deemed to
refer to the masculine, feminine, impersonal, singular or plural, as the
identity of the person or persons may require.
(2) Except as set forth in Sections A(4) and C(1) herein, neither this
Subscription Agreement nor any provision hereof shall be waived, modified,
changed, discharged, terminated, revoked or canceled except by an instrument in
writing signed by the party effecting the same against whom any change,
discharge or termination is sought.
(3) Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
or sent by registered mail, return receipt requested, addressed: (i) if to the
Company, at Matritech, Inc., 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Chief Executive Officer, with a copy to the Placement Manager at the
address contained on page ii hereof or (ii) if to the undersigned, at the
address for correspondence set forth in the Questionnaire, or at such other
address as may have been specified by written notice given in accordance with
this Section E(3).
(4) Failure of the Company to exercise any right or remedy under this
Subscription Agreement or any other agreement between the Company and the
undersigned, or otherwise, or delay by the Company in exercising such right or
remedy, will not operate as a waiver thereof. No waiver by the Company will be
effective unless and until it is in writing and signed by the Company.
(5) This Subscription Agreement shall be enforced, governed and construed
in all respects in accordance with the laws of the State of New York, as such
laws are applied by New York courts to agreements entered into and to be
performed in New York by and between residents of New York, and shall be binding
upon the undersigned, the undersigned's heirs, estate, legal representatives,
successors and assigns and shall inure to the benefit of the Company, its
successors and assigns. If any provision of this Subscription Agreement is
invalid or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any provision hereof that may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.
F. EXECUTION OF AGREEMENT BY POWER OF ATTORNEY.
THE UNDERSIGNED ACKNOWLEDGES THAT THE UNDERSIGNED HAS SIGNED THIS
SUBSCRIPTION AGREEMENT ON THE UNDERSIGNED'S OWN BEHALF, AND NOT BY POWER OF
ATTORNEY, UNLESS SUCH POWER OF ATTORNEY EXPRESSLY PROVIDES FOR THE FURTHER
DELEGATION OF SUCH POWER OF ATTORNEY BY THE HOLDER THEREOF AND, IN SUCH EVENT,
THE UNDERSIGNED REPRESENTS THAT ATTACHED HERETO IS A TRUE AND COMPLETE COPY OF
SUCH POWER OF ATTORNEY.
G. SIGNATURE.
The signature of this Subscription Agreement is contained as part of the
applicable Subscription Package, entitled "Signature Page."
11
A. MATRITECH, INC.
INDIVIDUAL INVESTOR QUESTIONNAIRE
-------------------------------------------------------
IMPORTANT: Investor Name: _____________________________________
Please Complete PPM Number _________________________________________
(from the cover of the Private Placement Memorandum)
-------------------------------------------------------
To: Matritech, Inc.
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned's subscription to purchase the Units
may be accepted.
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 Units 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.
IN ADDITION TO SIGNING THE SIGNATURE PAGE (PAGE A-5), YOU MUST COMPLETE
FORM W-9 FOUND AT PAGES F-1 AND F-2 AT THE END OF THIS SUBSCRIPTION PACKAGE.
--------------------------------------------------------------------------------
IF YOU ARE PURCHASING UNITS WITH YOUR SPOUSE, YOU MUST BOTH SIGN THE
SIGNATURE PAGE (PAGE A-5).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IF YOU ARE PURCHASING UNITS WITH ANOTHER PERSON NOT YOUR SPOUSE, YOU MUST EACH
FILL OUT A SEPARATE QUESTIONNAIRE INCLUDING FORM W-9. Please make a photocopy of
pages A-1 to A-5 and F-I and F-2 and return both completed Questionnaires to the
Placement Manager in the same envelope.
--------------------------------------------------------------------------------
I. PLEASE INDICATE DESIRED TYPE OF OWNERSHIP OF UNITS.
[ ] Individual
[ ] Joint Tenants (rights of survivorship)
[ ] Tenants in Common (no rights of survivorship)
[ ] Community Property
A-1
II. PLEASE CHECK ANY OF THE STATEMENTS 1-5 BELOW THAT APPLIES TO YOU.
1. I have an individual net worth* or 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
2000 and 2001, and I reasonably expect an individual income in
excess of $200,000 for 2002. 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 2000 and 2001, and I reasonably expect a joint income in
excess of $300,000 for 2002, and I am a resident of Alabama,
Arizona, California, Colorado, Connecticut, Delaware, the District
of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto
Rico, Rhode Island, South Carolina, South Dakota, Tennessee, Texas,
Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin or
Wyoming.
4. I am a Massachusetts resident, and my investment in the Units does
not exceed 25% of my net worth or, if I am married, 25% of the
combined net worth of my spouse and me, excluding principal
residence and home furnishings.
5. I am a director or executive officer of Matritech, Inc.
III. OTHER CERTIFICATIONS.
By signing the Signature Page, I certify the following (or, if I am
purchasing Units 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 Units will be solely for my own
account and not for the account of any other person (other than my
spouse or other co-owner); and
-------------------
* 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 plan,
alimony payments and any amount by which income from long-term capital gains has
been reduced in arriving at adjusted gross income.
A-2
(c) that the name, residence address and social security or
taxpayer identification number as set forth in this Questionnaire
are true, correct and complete.
IV. GENERAL INFORMATION.
1. PURCHASER.
Name:
--------------------------------------------------------------------------------
Social Security or Taxpayer Identification Number:
--------------------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Residence Telephone Number:
--------------------------------------------------------------------------------
(Area Code) (Number)
Business Name and Address:
--------------------------------------------------------------------------------
(Name of Business)
--------------------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Business Telephone Number:
--------------------------------------------------------------------------------
(Area Code) (Number)
I prefer to have correspondence sent to: [ ] Residence [ ] Business
2. SPOUSE, IF CO-OWNER.
Name:
--------------------------------------------------------------------------------
A-3
Social Security or Taxpayer Identification Number:
--------------------------------------------------------------------------------
Residence Address (if different from Purchaser's):
--------------------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Residence Telephone Number
(if different from Purchaser's):
----------------------------------------------
(Area Code) (Number)
Business Name and Address
(if different from Purchaser's):
----------------------------------------------
(Business Name)
--------------------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Business Telephone Number
(if different from Purchaser's):
----------------------------------------------
(Area Code) (Number)
I prefer to have correspondence sent to: [ ] Residence [ ] Business
A-4
MATRITECH, INC.
INDIVIDUAL SIGNATURE PAGE
Your signature on this Individual Signature Page evidences your agreement
to be bound by the QUESTIONNAIRE and the SUBSCRIPTION AGREEMENT.
The undersigned represents that (a) he/she has read and understands this
Subscription Agreement, (b) the information contained in this Questionnaire is
complete and accurate and (c) he/she will telephone the Placement Manager
(contact by collect call at the telephone number contained on page ii hereof)
immediately if any material change in any of this information occurs before the
acceptance of his/her subscription and will promptly send the Placement Manager
written confirmation of such change.
----------------------------------
Date
------------------------------
Number of Units applied for
By:
----------------------------------
Name:
Title:
Date:
By:
----------------------------------
(Signature of Spouse If Co-Owner)
Name:
Title:
Date:
--------------------------------------------------------------------------------
IF YOU ARE PURCHASING UNITS WITH YOUR SPOUSE, YOU MUST BOTH SIGN THE
SIGNATURE PAGE (PAGE A-5).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IF YOU ARE PURCHASING UNITS WITH ANOTHER PERSON NOT YOUR SPOUSE, YOU MUST
EACH FILL OUT A SEPARATE QUESTIONNAIRE INCLUDING FORM W9 OR W-8. Please make a
photocopy of pages A-1 to A-2 and F-I and F-2 and return both completed
Questionnaires to the Placement Manager in the same envelope.
--------------------------------------------------------------------------------
THE UNITS, SHARES, WARRANTS AND WARRANT SHARES 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 IS NOT REQUIRED.
A-5
B. MATRITECH, INC.
TRUST QUESTIONNAIRE
------------------------------------------------------
IMPORTANT: Investor Name:________________________________________
Please Complete
PPM Number ___________________________________________
(from the cover of the Private Placement Memorandum)
------------------------------------------------------
To: Matritech, Inc.
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned TRUST's subscription to purchase the
Units may be accepted.
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 Units 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.
IN ADDITION TO SIGNING THE SIGNATURE PAGE (PAGE B-6), THE UNDERSIGNED
TRUST MUST COMPLETE FORM W-9 FOUND AT PAGES F-I AND F-2 AT THE END OF THIS
SUBSCRIPTION PACKAGE.
--------------------------------------------------------------------------------
NOTE: RETIREMENT PLANS SHOULD COMPLETE THE QUESTIONNAIRE ON PAGES E-1 TO
E-7.
--------------------------------------------------------------------------------
1. PLEASE CHECK STATEMENTS 1 OR 2 BELOW, AS APPLICABLE.
1. All of the trustees of the TRUST are residents of Alabama, Arizona,
California, Colorado, Connecticut, Delaware, the District of Columbia,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New
Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina,
South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West
Virginia, Wisconsin or Wyoming; and
1. the TRUST has total assets in excess of $5,000,000; AND
2. the TRUST was not formed for the specific purpose of acquiring the
Units; AND
B-1
3. 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 Units.
2. The TRUST is a revocable grantor TRUST which grantor may revoke at any
time without the consent or approval of any other person; 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 2000 and 2001, and who reasonably
expects an individual income in excess of $200,000 for 2002; 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 2000
and 2001 and who reasonably expects a joint income in excess of
$300,000 in 2002, and all of the trustees of the TRUST are residents
of Alabama, Arizona, California, Colorado, Connecticut, Delaware,
the District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana,
Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York,
North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania,
Puerto Rico, Rhode Island, South Carolina, South Dakota, Tennessee,
Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin
or Wyoming; or
d. the grantor is a director or executive officer of Matritech, Inc.
--------------------------------------------------------------------------------
IF THE TRUST IS A REVOCABLE GRANTOR TRUST, EACH GRANTOR MUST PHOTOCOPY AND
COMPLETE SECTION II BELOW.
--------------------------------------------------------------------------------
2. FOR REVOCABLE GRANTOR TRUSTS ONLY: PLEASE CHECK ANY OF STATEMENTS 1-5
BELOW THAT APPLY TO THE GRANTOR.
1. I have an individual net worth or 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
2000 and 2001, and I reasonably expect an individual income in
excess of $200,000 for 2002.
-----------------------
* 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 plan,
alimony payments and any amount by which income from long-term capital gains has
been reduced in arriving at adjusted gross income.
B-2
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 2000 and 2001, and I reasonably expect a joint income in
excess of $300,000 for 2002, and I am a resident of Alabama,
Arizona, California, Colorado, Connecticut, Delaware, the District
of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Ok1ahoma~ Oregon, Pennsylvania, Puerto
Rico, Rhode Island, South Carolina, South Dakota, Tennessee, Texas,
Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin or
Wyoming.
4. I am a Massachusetts resident, and my investment in the Units does
not exceed 25% of my net worth or, if I am married, 25% of the
combined net worth of my spouse and me, excluding principal
residence and home furnishings
5. I am a director or executive officer of Matritech, Inc.
GRANTOR
By:
---------------------------------------
Name:
Title:
GRANTOR
By:
---------------------------------------
Name:
Title:
3. OTHER CERTIFICATIONS.
(a) By signing the Signature Page, the undersigned certifies the
following:
(b) that the TRUST's purchase of the Units will be solely for the TRUST'
own account and not for the account of any other person;
(c) that the TRUST's purchase of the Units 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
B-3
has all requisite power and authority as trustee to execute this
Questionnaire and the Subscription Agreement on behalf of the TRUST;
(d) 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; and
(e) that the TRUST's name, address, place of formation and taxpayer
identification number as set forth in this Questionnaire are true,
complete and complete.
4. 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)
State in which Formed:
----------------------------------------------------------
Date of Formation:
--------------------------------------------------------------
Taxpayer Identification Number:
-------------------------------------------------
(b) TRUSTEE(S) WHO ARE EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
TRUST.
Name(s) of
Trustee(s):
---------------------------------------------------------
If Grantor Trust, Name(s) of Grantor(s):
----------------------------------
5. ADDITIONAL INFORMATION.
--------------------------------------------------------------------------------
A TRUST MAY BE REQUIRED TO ATTACH A COPY OF THE TRUST AGREEMENT, DECLARATION OF
TRUST OR OTHER GOVERNING INSTRUMENT, AS AMENDED, AS WELL AS ALL OTHER DOCUMENTS
THAT AUTHORIZE THE TRUST TO INVEST IN THE UNITS. ALL DOCUMENTATION MUST BE
COMPLETE AND CORRECT.
--------------------------------------------------------------------------------
B-4
MATRITECH, INC.
TRUST SIGNATURE PAGE
Your signature on this TRUST Signature Page evidences the agreement by the
Trustee(s), on behalf of the TRUST, to be bound by the Questionnaire and the
Subscription Agreement.
1. The undersigned trustees represent that (a) the information contained
in this Questionnaire is complete and accurate and (b) the TRUST will notify the
Placement Manager (contact by collect call at the telephone number contained on
page ii hereof) immediately if any material change in any of this information
occurs before the acceptance of the TRUST's subscription and will promptly send
the Placement Manager written confirmation of such change.
2. The undersigned trustees hereby certify that they have read and
understand this Subscription Agreement.
3. The undersigned trustees hereby represent and warrant that the persons
signing this Subscription Agreement on behalf of the TRUST are duly authorized
to acquire the Units and sign this Subscription Agreement on behalf of the TRUST
and, further, that the undersigned TRUST has all requisite authority to purchase
such Units and enter into this Subscription Agreement.
--------------------------------------------- -----------------------------
Number of Units applied for Date
Please Type or Print the Exact Legal Title of
Trust as follows: Trustee's name, as trustee
for [Name of Grantor] under [Agreement or
Declaration of Trust] dated [Date of Trust
Formation] -----------------------------
Title of Trust
Name of Name of
Trustee: Trustee:
----------------------------------- ---------------------
(Please Type or Print) (Please Type or Print)
By: By:
---------------------------------------- ---------------------------
(Signature of Trustee) (Signature of Trustee)
THE UNITS, SHARES, WARRANTS AND WARRANT SHARES 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
B-5
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-6
C. MATRITECH, INC.
PARTNERSHIP QUESTIONNAIRE
--------------------------------------------------------------------------------
IMPORTANT: Investor Name:_________________________________________________
Please Complete
PPM Number ____________________________________________________
(from the cover of the Private Placement Memorandum)
--------------------------------------------------------------------------------
To: Matritech, Inc.
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned PARTNERSHIP's subscription to
purchase the Units may be accepted.
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 Units 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.
IN ADDITION TO SIGNING THE SIGNATURE PAGE (PAGE C-6), THE UNDERSIGNED
PARTNERSHIP MUST COMPLETE FORM W-9 FOUND AT PAGES F-1 AND F-2 AT THE END OF THIS
SUBSCRIPTION PACKAGE.
I. PLEASE CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLIES TO THE PARTNERSHIP.
1. The undersigned PARTNERSHIP: (a) has total assets in excess of
$5,000,000; (b) was not formed for the specific purpose of acquiring
the Units; and (c) has its principal place of business in Alabama,
Arizona, Colorado, Connecticut, Delaware, the District of Columbia,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Utah,
Vermont, Virginia, Washington, West Virginia, Wisconsin or Wyoming.
2. Each of the partners of the undersigned PARTNERSHIP is able to
certify that such partner meets at least one of the following three
conditions:
C-1
(a) the partner is a natural person whose individual net worth** or
joint net worth with his or her spouse exceeds $1,000,000; or
(b) the partner is a natural person whose individual income* was in
excess of $200,000 in each of 2000 and 2001 and who reasonably
expects an individual income in excess of $200,000 in 2002; or
(c) the partner is a director or executive officer of Matritech, Inc.
1. 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 2000 and 2001 and who reasonably expects a joint income in excess
of $300,000 in 2002, and the undersigned PARTNERSHIP has its
principal place of business in Alabama, Arizona, Colorado,
Connecticut, Delaware, the District of Columbia, Florida, Georgia,
Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma,
Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina,
South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington,
West Virginia, Wisconsin or Wyoming.
--------------------------------------------------------------------------------
IF YOU CHECKED STATEMENT 2 OR STATEMENT 3 IN SECTION I AND DID NOT CHECK
STATEMENT I, 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 2 OR STATEMENT 3) SUCH PARTNER
QUALIFIES AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL
INCOME OR JOINT INCOME), OR EACH PARTNER MUST PHOTOCOPY AND COMPLETE SECTION II
BELOW.
--------------------------------------------------------------------------------
II. IF YOU CHECKED STATEMENT 2 OR STATEMENT 3 IN SECTION I ABOVE, EACH PARTNER
MUST CHECK ANY OF THE STATEMENTS 1-5 BELOW THAT APPLIES TO SUCH PARTNER
AND SIGN WHERE INDICATED.
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
2000 and 2001, and I reasonably expect an individual income in
excess of $200,000 for 2002.
-----------------
* 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 plan,
alimony payments and any amount by which income from long-term capital gains has
been reduced in arriving at adjusted gross income.
C-2
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 2000 and 2001, and I reasonably expect a joint income in
excess of $300,000 for 2002, and I am a resident of Alabama,
Arizona, Colorado, Connecticut, Delaware, the District of Columbia,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Utah,
Vermont, Virginia, Washington, West Virginia, Wisconsin or Wyoming.
4. I am a Massachusetts resident, and my investment in the Units does
not exceed 25% of my net worth or, if I am married, 25% of the
combined net worth of my spouse and me, excluding principal
residence and home furnishings.
5. I am a director or executive officer of Matritech, Inc.
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
Print Name (s) of Partner(s) Signature(s) of Partner(s)
III. OTHER CERTIFICATIONS.
By signing the Signature page, the undersigned certifies the following:
(a) that the PARTNERSHIP's purchase of the Units will be solely for the
PARTNERSHIP'S own account and not for the account of any other
person; and
(b) that the PARTNERSHIP's name, address of principal place of business,
place of formation and taxpayer identification number as set forth
in this Questionnaire are true, correct and complete.
IV. GENERAL INFORMATION.
(a) PROSPECTIVE PURCHASER (THE PARTNERSHIP)
Name:
-------------------------------------------------------------------------
X-0
Xxxxxxxxx Xxxxx 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)
State in which Formed:
----------------------------------------------------------
Date of Formation:
------------------------------------------------------------
Taxpayer Identification Number:
-----------------------------------------------
Number of Partners:
-----------------------------------------------------------
(b) THE PERSON WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
PARTNERSHIP
Name:
-----------------------------------------------------------------------
Position or Title:
------------------------------------------------------------
(c) IF SECTION II HAS BEEN COMPLETED, NAMES AND SIGNATURES OF ALL
INDIVIDUAL PARTNERS MUST APPEAR ON PAGE C-3
C-4
MATRITECH, INC.
PARTNERSHIP SIGNATURE PAGE
Your signature on this Partnership Signature page evidences the agreement
by the PARTNERSHIP to be bound by the Questionnaire and the Subscription
Agreement.
1. The undersigned PARTNERSHIP hereby represents that (a) the information
contained in this Questionnaire is complete and accurate and (b) the PARTNERSHIP
will notify the Placement Manager (contact by collect call at the telephone
number contained on page ii hereof) immediately if any material change in any of
this information occurs before the acceptance of the undersigned PARTNERSHIP's
subscription and will promptly send the Placement Manager written confirmation
of such change.
2. The undersigned PARTNERSHIP hereby certifies that it has read and
understands this Subscription Agreement.
3. The undersigned PARTNERSHIP hereby represents and warrants that the
person signing this Subscription Agreement on behalf of the PARTNERSHIP is a
general partner of the PARTNERSHIP, has been duly authorized by the PARTNERSHIP
to acquire the Units and sign this Subscription Agreement on behalf of the
PARTNERSHIP and, further, that the undersigned PARTNERSHIP has all requisite
authority to purchase such Units and enter into this Subscription Agreement.
--------------------------------- ---------------------------------------------
Number of Units applied for Date
---------------------------------------------
Name of Partnership
(Please Type or Print)
By:
--------------------------------------
(Signature)
Name:
----------------------------------
(Please Type or Print)
Title:
-----------------------------------
THE UNITS, SHARES, WARRANTS AND WARRANT SHARES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED
C-5
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-6
D. MATRITECH, INC.
CORPORATION QUESTIONNAIRE
-------------------------------------------------------------
IMPORTANT: Investor Name:____________________________________________
Please Complete
PPM Number _______________________________________________
(from the cover of the Private Placement Memorandum)
-------------------------------------------------------------
To: Matritech, Inc.
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned CORPORATION'S subscription to
purchase the Units may be accepted.
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 Units 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.
IN ADDITION TO SIGNING THE SIGNATURE PAGE (PAGE D-6), THE UNDERSIGNED
CORPORATION MUST COMPLETE FORM W-9 FOUND AT PAGES F-1 AND F-2 AT THE END OF THIS
SUBSCRIPTION PACKAGE.
I. PLEASE CHECK ANY OF STATEMENTS 1-5 BELOW THAT APPLIES TO THE CORPORATION.
1. The undersigned CORPORATION: (a) has total assets in excess of
$5,000,000; (b) was not formed for the specific purpose of acquiring
any Units; and (c) has its principal place of business in Alabama,
Arizona, Colorado, Connecticut, Delaware, the District of Columbia,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode
Island, South Carolina, South Dakota, Tennessee, Utah, Texas,
Virginia, Washington, West Virginia, Wisconsin or Wyoming.
2. The undersigned CORPORATION: (a) has total assets in excess of
$14,000,000; (b) was not formed for the specific purpose of
acquiring any Units; and (c) has its principal place of business in
California.
D-1
3. 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
b. the shareholder is a natural person who had an individual
income* in excess of $200,000 in each of 2000 and 2001 and who
reasonably expects an individual income in excess of $200,000
in 2002.
4. 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 2000 and 2001 and who reasonably expects a joint income in
excess of $300,000 during 2002, and the undersigned CORPORATION has
its principal place of business in Alabama, Arizona, Colorado,
Connecticut, Delaware, the District of Columbia, Florida, Georgia,
Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma,
Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina,
South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington,
West Virginia, Wisconsin or Wyoming.
5. The undersigned CORPORATION is:
a. a bank as defined in Section 3(a)(2) of the Securities Act; or
b. a 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; or
c. a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934; or
d. an insurance company as defined in Section 2(13) of the
Securities Act; or
e. an investment company registered under the Investment Company
Act of 1940 or a business development company as defined in
Section 2(a)(48) of the Investment Company Act of 1940; 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 plan,
alimony payments and any amount by which income from long-term capital gains has
been reduced in arriving at adjusted gross income.
D-2
f. 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; or
g. a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940.
--------------------------------------------------------------------------------
IF YOU CHECKED STATEMENT 3 OR STATEMENT 4 IN SECTION I AND DID NOT CHECK
STATEMENT I, YOU MUST PROVIDE A LETTER SIGNED BY AN OFFICER OF THE UNDERSIGNED
CORPORATION LISTING THE NAME OF EACH SHAREHOLDER AND THE REASON (UNDER
STATEMENT 3 OR STATEMENT 4) WHY SUCH SHAREHOLDER QUALIFIES AS AN ACCREDITED
INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL INCOME OR JOINT INCOME) OR EACH
SHAREHOLDER MUST PHOTOCOPY AND COMPLETE SECTION II BELOW.
--------------------------------------------------------------------------------
II. IF YOU CHECKED STATEMENT 3 OR STATEMENT 4 IN I ABOVE, EACH SHAREHOLDER
MUST CHECK ANY OF THE STATEMENTS 1-5 BELOW THAT APPLIES TO SUCH
SHAREHOLDER AND SIGN BELOW WHERE INDICATED.
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 2000 and 2001, and I reasonably expect an individual income
in excess of $200,000 for 2002. 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 2000 and 2001, and I reasonably expect a joint
income in excess of $300,000 for 2002, and I am a resident of
Alabama, Arizona, California, Colorado, Connecticut, Delaware,
the District of Columbia, Florida, Georgia, Hawaii, Idaho,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, Nevada, New Hampshire, New
Jersey, New Mexico, New York, North Carolina, North Dakota,
Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Utah,
Vermont, Virginia, Washington, West Virginia, Wisconsin or
Wyoming.
4. I am a Massachusetts resident, and my investment in Units does
not exceed 25% of my net worth or, if I am married, 25% of the
combined net worth of my spouse and me, excluding principal
residence and home furnishings.
D-3
5. I am a director or executive officer of Matritech, Inc.
SHAREHOLDER
By:
------------------------------------------
Name:
Title:
SHAREHOLDER
By:
------------------------------------------
Name:
Title:
III. OTHER CERTIFICATIONS.
By signing the Signature Page, the undersigned certifies the following:
(a) that the CORPORATION's purchase of Units will be solely for the
CORPORATION's own account and not for the account of any other
person or entity; and
(b) that the CORPORATION's name, address of principal place of business,
place of incorporation and taxpayer identification number as set
forth in this Questionnaire are true, correct and complete.
IV. 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)
D-4
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number:
----------------------------------------------------------------
(Area Code) (Number)
State of Incorporation:
---------------------------------------------------------
Date of Formation:
------------------------------------------------------------
Taxpayer Identification Number:
-----------------------------------------------
Number of Shareholders:
-------------------------------------------------------
(b) INDIVIDUAL WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
CORPORATION
Name:
-----------------------------------------------------------------------
Position or Title:
------------------------------------------------------------
(c) IF SECTION II HAS BEEN COMPLETED, NAMES AND SIGNATURES OF ALL
INDIVIDUAL SHAREHOLDERS MUST APPEAR ON D-4.
D-5
MATRITECH, INC.
CORPORATION SIGNATURE PAGE
Your signature on this Corporation Signature Page evidences the agreement
by the CORPORATION to be bound by the Questionnaire and the Subscription
Agreement.
1. The undersigned CORPORATION hereby represents that (a) the information
contained in this Questionnaire is complete and accurate and (b) the CORPORATION
will notify the Placement Manager (contact by collect call at the telephone
number contained on page ii hereof) 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 the Placement Manager written confirmation
of such change.
2. The undersigned CORPORATION hereby certifies that it has read and
understands this Subscription Agreement.
3. The undersigned CORPORATION hereby represents and warrants that the
person signing this Subscription Agreement on behalf of the CORPORATION has been
duly authorized by all requisite action on the part of the CORPORATION to
acquire the Units and sign this Subscription Agreement on behalf of the
CORPORATION and, further, that the undersigned CORPORATION has all requisite
authority to purchase the Units and enter into this Subscription Agreement.
--------------------------------------- -------------------------------------
Number of Units applied for DATE
-------------------------------------
(Name of Corporation)
By:
----------------------------------
Name:
Title:
THE UNITS, SHARES, WARRANTS AND WARRANT SHARES 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 BY COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT
REGISTRATION OF SUCH SECURITIES IS NOT REQUIRED.
D-6
E. MATRITECH, INC.
RETIREMENT PLAN QUESTIONNAIRE
-------------------------------------------------------------
IMPORTANT: Investor Name:___________________________________________
Please Complete
PPM Number_______________________________________________
(from the cover of the Private Placement Memorandum)
-------------------------------------------------------------
To: Matritech, Inc.
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned RETIREMENT PLAN's subscription to
purchase the Units may be accepted.
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 Units 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.
IN ADDITION TO SIGNING THE SIGNATURE PAGE (PAGE E-7), YOU MUST COMPLETE
FORM W-9 FOUND AT PAGES F-1 AND F-2 AT THE END OF THIS SUBSCRIPTION PACKAGE.
I. PLEASE CHECK ANY OF THE FOLLOWING STATEMENTS, AS APPLICABLE.
1. The undersigned RETIREMENT PLAN certifies that it is a 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 2000 and 2001 and reasonably expects an individual
income in excess of $200,000 in 2002;
----------------------
* 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 depletions, contributions to XXX or Xxxxx retirement
plan, alimony payments and any amount by which income from long-term capital
gains has been reduced in arriving at adjusted gross income.
E-1
c. such person, together with his or her spouse, had a joint
income in excess of $300,000 in each of 2000 and 2001 and
reasonably expects a joint income in excess of $300,000 in
2002 and is a resident of Alabama, Arizona, Colorado
Connecticut, Delaware, the District of Columbia, Florida,
Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada,
New Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania,
Puerto, Rico, Rhode Island, South Carolina, South Dakota,
Tennessee, Texas, Vermont, Virginia, Washington, West
Virginia, Wisconsin or Wyoming.
2. The undersigned RETIREMENT PLAN certifies that it is an employee
benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and:
(a) The undersigned RETIREMENT PLAN is self-directed, with investment
decisions made solely by persons that are not residents of Alaska,
Arkansas, California, Maryland, Texas or Utah, and each such person
directing his account and for whom the investment is being made
satisfies at least one of the following conditions:
1. such person's individual net worth or joint net worth with his or
her spouse exceeds $1,000,000; or
2. such person had an individual income in excess of $200,000 in each
of 2000 and 2001 and reasonably expects an individual income in
excess of $200,000 in 2002; or
3. such person together with his or her spouse, had a joint income in
excess of $300,000 in each of 2000 and 2001 and reasonably expects a
joint income in excess of $300,000 in 2002 and is a resident of
Alabama, Arizona, Colorado, Connecticut, Delaware, the District of
Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa,
Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania,
Puerto, Rico, Rhode island, South Carolina, South Dakota, Tennessee,
Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin or
Wyoming.
4. such person is a director or executive officer of Matritech, Inc.
b. The undersigned RETIREMENT PLAN has total assets in excess of
$5,000,000 and such Plan is not maintained in Alaska or
California; or
c. The investment decisions are made by a plan fiduciary as
defined in Section 3(21) of ERISA that (1) is either a bank,
insurance company or registered investment adviser or (2) is
located in jurisdictions other than
E-2
Alaska, Arkansas, California or Texas and is a savings and
loan association.
--------------------------------------------------------------------------------
IF YOU CHECKED STATEMENT 1 OR STATEMENT 2(a) IN SECTION I ABOVE, EACH RETIREMENT
PLAN PARTICIPANT FOR WHOSE ACCOUNT THE INVESTMENT IS BEING MADE MUST PHOTOCOPY
AND COMPLETE SECTION II BELOW.
--------------------------------------------------------------------------------
II. IF YOU CHECKED STATEMENT 1 OR STATEMENT 2(A) IN SECTION 1 ABOVE, EACH
RETIREMENT PLAN PARTICIPANT FOR WHOSE ACCOUNT THE INVESTMENT IS BEING MADE
MUST CHECK ANY OF THE STATEMENTS 1-5 BELOW THAT APPLIES TO SUCH
PARTICIPANT.
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
2000 and 2001, and I reasonably expect an individual income in
excess of $200,000 for 2002. 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 2000 and 2001, and reasonably expect a joint income excess
of $300,000 for 2002, and I am a resident of Alabama, Arizona,
Colorado Connecticut, Delaware, the District of Columbia, Florida,
Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New
Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South
Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia,
Washington, West Virginia, Wisconsin or Wyoming.
4. I am a Massachusetts resident, and my investment in the Units does
not exceed 25% of my net worth or, if I am married, 25% of the
combined net worth of my spouse and me, excluding principal
residence and home furnishings.
5. I am a director or executive officer of Matritech, Inc.
By:
-------------------------------------
Name:
Title:
E-3
III. OTHER CERTIFICATIONS.
By signing the Signature Page, the undersigned certifies the following:
(a) that the RETIREMENT PLAN's purchase of Units 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; and
(c) that the RETIREMENT PLAN's name, address, place of formation and
taxpayer identification number as set forth in this Questionnaire
are true, correct and complete.
IV. GENERAL INFORMATION.
(a) PROSPECTIVE PURCHASER (THE RETIREMENT PLAN).
Name:
-------------------------------------------------------------------------
Address:
----------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Address for Correspondence (if different):
Name:
-------------------------------------------------------------------------
Address:
----------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
City) (State) (Zip Code)
Telephone Number:
--------------------------------------------------------------------------------
(Area Code) (Number)
State in which Formed:
--------------------------------------------------------
Date of Formation:
------------------------------------------------------------
Taxpayer Identification Number:
-----------------------------------------------
E-4
(b) INDIVIDUAL WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
RETIREMENT PLAN (TRUSTEE FOR AN EMPLOYEE BENEFIT PLAN; CUSTODIAN FOR
AN XXX OR XXXXX).
Name:
-------------------------------------------------------------------------
Position or Title:
------------------------------------------------------------
V. ADDITIONAL INFORMATION.
--------------------------------------------------------------------------------
THE RETIREMENT PLAN MAY BE REQUIRED TO ATTACH COPIES OF ALL DOCUMENTS GOVERNING
THE PLAN AS WELL AS ALL OTHER DOCUMENTS AUTHORIZING THE RETIREMENT PLAN TO
INVEST IN THE UNITS. INCLUDE, AS NECESSARY, THE TRUST AGREEMENT AND 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.
--------------------------------------------------------------------------------
E-5
MATRITECH, INC.
RETIREMENT PLAN SIGNATURE PAGE
Your signature on this RETIREMENT PLAN Signature Page evidences the
agreement by the RETIREMENT PLAN to be bound by the Questionnaire and the
Subscription Agreement.
1. The undersigned RETIREMENT PLAN hereby represents that (a) the
information contained in this Questionnaire is complete and accurate and (b) the
RETIREMENT PLAN will notify the Placement Manager (contact by collect call at
the telephone number contained on page ii hereof) 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 the Placement
Manager written confirmation of such change.
2. The undersigned RETIREMENT PLAN hereby certifies that it has read and
understands this Subscription Agreement.
3. The undersigned RETIREMENT PLAN hereby represents and warrants that the
person signing this Subscription Agreement on behalf of the RETIREMENT PLAN has
been duly authorized to acquire the Units and sign this Subscription Agreement
on behalf of the RETIREMENT PLAN and, further, that the undersigned RETIREMENT
PLAN has all requisite authority to purchase the Units and enter into this
Subscription Agreement.
--------------------------------- ----------------------------------------
Number of Units applied for Date
----------------------------------------
(Name of Retirement Plan)
By:
------------------------------------
Name:
Title:
Date:
THE UNITS, SHARES, WARRANTS AND WARRANT SHARES 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. MATRITECH, INC.
W-9 ATTACHED
E-6
