EXHIBIT 4.5
Name of Subscriber:_____________________________________________
Total Number of Shares of Common Stock: ________________________
SUNSTAR HEALTHCARE, INC.
SUBSCRIPTION AGREEMENT, STOCKHOLDER VOTING AGREEMENT AND PROXY
(QUESTIONNAIRE AND INVESTMENT REPRESENTATION)
THE SECURITIES BEING SUBSCRIBED FOR HEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNDER APPLICABLE
STATE SECURITIES LAWS DUE TO THE LIMITED
NUMBER OF PERSONS BEING OFFERED TO
AND THE PRIVATE NATURE
OF THE OFFERING.
FURTHER, THE SECURITIES BEING SUBSCRIBED FOR MAY NOT BE
TRANSFERRED EXCEPT PURSUANT TO TRANSACTIONS EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OF 1933, AS AMENDED,
AND APPLICABLE STATE SECURITIES
LAWS, OR COMPLIANCE
THEREWITH.
1. Instructions. This subscription agreement, stockholder voting
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agreement and proxy (questionnaire and investment representation) (this
"Agreement") must be executed and delivered by each prospective investor (the
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"Subscriber") in the Common Stock (the "Securities") of SunStar Healthcare,
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Inc., a Delaware corporation (the "Company") being offered pursuant to a
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Confidential Memorandum dated ____________, 1998, and any amendments or
supplements thereto, including copies of the Company's 1997 annual report filed
on Form 10-KSB and its quarterly report on Form 10-QSB for the period ended
January 31, 1998 (collectively the "Memorandum"). If your answer to any of the
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following questions, representations or warranties is negative or not
applicable, you must indicate such in writing: otherwise, your answer will be
deemed to be in the affirmative or otherwise as indicated.
If the investor is a partnership, it must furnish a copy of its partnership
agreement and such further information as may be required to satisfy the Company
that such partnership is a pre-existing business entity which was not formed
specifically for the purpose of making this investment. If the investor is a
business trust (IRA, Xxxxx plan trust, qualified pension and/or
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profit sharing plan trust, custodial account or other such account) or a
corporation or other legal entity, unless otherwise indicated, all responses are
being made on behalf of each of the principal beneficiaries of the trust and the
shareholders of the corporation. In addition, you must furnish the Company with
a copy of the instrument (including all amendments) creating the entity.
Your answers will be kept strictly confidential at all times; provided,
however, that the Company may disclose the information provided for the purpose
of proving compliance with any and all applicable laws, including securities and
tax laws.
Any questions regarding this Agreement or your investment should be
directed to Xx. Xxxxx X. Xxxxx, Executive Vice President and Chief Operating
Officer, SunStar Healthcare, Inc., 000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxx 00000, Telephone: 000-000-0000, Facsimile: 000-000-0000.
Prospective Investors should retain their own professional advisors to
review and evaluate the economic, tax and other consequences of an investment in
the Company.
THE SECURITIES OFFERED PURSUANT TO THIS AGREEMENT (QUESTIONNAIRE AND
INVESTMENT REPRESENTATION), AND THE MEMORANDUM (COLLECTIVELY, THE
"OFFERING MATERIALS") HAVE NOT BEEN FILED OR REGISTERED WITH OR
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APPROVED BY THE SECURITIES AND EXCHANGE COMMISSION (THE
"COMMISSION"), NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
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ADEQUACY OF THE OFFERING MATERIALS.
THE SECURITIES OFFERED HEREBY ARE BEING OFFERED PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS FOR NON-PUBLIC OFFERINGS. SUCH
EXEMPTIONS LIMIT THE NUMBER AND TYPES OF INVESTORS TO WHICH THE
OFFERING WILL BE MADE AND RESTRICT SUBSEQUENT TRANSFER OF THE
INTERESTS.
THE SECURITIES OFFERED HEREBY SHOULD BE CONSIDERED ONLY BY PERSONS WHO
CAN AFFORD TO SUSTAIN A LOSS OF THEIR ENTIRE INVESTMENT. INVESTORS
WILL BE REQUIRED TO REPRESENT THAT THEY ARE FAMILIAR WITH AND
UNDERSTAND THE TERMS OF THIS OFFERING.
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NO SECURITIES MAY BE RESOLD OR OTHERWISE DISPOSED OF BY AN INVESTOR
UNLESS, IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY.
REGISTRATION UNDER THE APPLICABLE FEDERAL OR STATE SECURITIES LAWS IS
NOT REQUIRED OR COMPLIANCE IS MADE WITH SUCH REGISTRATION
REQUIREMENTS.
THE OFFEREE, BY ACCEPTING DELIVERY OF THE OFFERING MATERIALS, AGREES
TO RETURN THE OFFERING MATERIALS AND ALL ACCOMPANYING OR RELATED
DOCUMENTS TO THE COMPANY UPON REQUEST IF THE OFFEREE DOES NOT AGREE TO
PURCHASE ANY OF THE SECURITIES OFFERED HEREBY.
THE OFFERING MATERIALS ARE SUBMITTED IN CONNECTION WITH THE PRIVATE
PLACEMENT OF THE SECURITIES AND DO NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH AN OFFER OR
SOLICITATION IS NOT AUTHORIZED. ANY REPRODUCTION OR DISTRIBUTION OF
THE OFFERING MATERIALS IN WHOLE OR IN PART, OR THE DIVULGENCE OF ANY
OF THEIR CONTENTS, WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY,
IS PROHIBITED. ANY PERSON ACTING CONTRARY TO THE FOREGOING
RESTRICTIONS MAY PLACE HIMSELF AND THE COMPANY IN VIOLATION OF FEDERAL
OR STATE SECURITIES LAWS.
NASAA UNIFORM LEGEND
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE PERSON OR ENTITY CREATING THE SECURITIES AND THE
OFFERING AND SALE OF SECURITIES, INCLUDING THE MERITS AND RISKS
INVOLVED. THESE 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 THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON
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TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT
AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE
APPLICABLE STATE SECURITIES LAWS. PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
2. General Information.
Age: ____________________________________________
Residence Address: ____________________________________________
____________________________________________
____________________________________________
Mailing Address: ____________________________________________
(if different) ____________________________________________
____________________________________________
Telephone: ____________________________________________
Social Security No.: ____________________________________________
Occupation: ____________________________________________
Business Name and
Address: ____________________________________________
____________________________________________
____________________________________________
____________________________________________
Business Telephone: ____________________________________________
Describe Current Employment or Business Activity:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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How Long: ____________________________________________
3. Knowledge and Experience in Business and Financial Affairs.
Have you invested with the Company previously:
Yes____ No____
Have you ever invested in any "restricted" stock or unmarketable securities
previously:
Yes____ No____
If so, please briefly explain the nature of the investments:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(In lieu of answering the two immediately preceding questions, please attach
such information as you feel is necessary to provide the information requested.)
4. Accredited Investor Status. The Subscriber represents and warrants
that the answers to the following questions are correct (check if applicable).
If none of the following applies to you please leave a blank.
_____(i) I am a natural person whose individual net worth,
individually or together with my spouse, at the time of
purchase exceeds $1,000,000 (at the time of his or her
purchase);
_____(ii) I am a natural person who had an individual income in excess
of $200,000 or a joint income with my spouse in excess of
$300,000 in each of the two most recent years;
_____(iii) I am a broker or dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934;
_____(iv) I am an employee benefit plan, including an individual
retirement account, within the meaning of Title I of
the Employee Retirement Income Security Act of 1974,
and (a) investment decisions are made by a plan
fiduciary, as defined in section 3(21) of such Act,
which is either a bank, savings and loan association,
insurance company or registered investment adviser, or
(b) such employee benefit plan has total assets in
excess of
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$5,000,000 or, (c) it is a self-directed plan and
investment decisions are made solely by persons that
are accredited investors;
_____(v) I am a private business development company as defined in
section 202(a)(22) of the Investment Advisers Act of 1940;
_____(vi) I am an organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, a corporation, a
Massachusetts or similar business trust, or a partnership,
not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of
$5,000,000;
_____(vii) I am a director or executive officer of Company;
_____(viii) I am a trust with total assets in excess of $5,000,000,
not formed for the specific purpose of acquiring the
securities offered, whose purchase is directed by a
sophisticated person as described in Rule 506(b)(2)(ii)
under the Act;
_____(ix) I am an entity in which all of the equity owners are
"accredited investors" under Rule 501 (a) of the Securities
Act of 1933, as amended;
_____(x) I am a plan established and maintained by a state, its
political subdivisions, or an agency or instrumentality of
a state or its political subdivisions, for the benefit of
its employees, if such plan has total assets in excess of
$5,000,000;
_____(xi) I am a bank as defined in Section 3(a)(2) of the Securities
Act or any savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the
Securities Act whether acting in its individual or
fiduciary capacity;
_____(xii) I am an insurance company as defined in Section 2(13) of
the Securities Act;
_____(xiii) I am an investment company registered under the Investment
Company Act of 1940 or a business development company as
defined in Section 2(a)(48) of that Act; or
_____(xiv) I am 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.
5. Consideration for Purchase. The undersigned (the "Subscriber")
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hereby elects to purchase the Common Stock (the "Securities") in the aggregate
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principal amount indicated on the initial page hereof.
6. Understandings of the Subscriber. The Subscriber acknowledges,
understands
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and agrees that:
(a) The Company reserves the right to reject all or any part of this
subscription in its sole discretion.
(b) This Agreement is and shall be irrevocable, except that the
Subscriber shall have no obligations hereunder in the event that it is for any
reason rejected by the Company.
(c) The Subscriber will be promptly notified by the Company whether
this subscription has been accepted, either in whole or in part, and if not
accepted in whole, agrees to accept the return of a proportionate part of the
funds tendered to the Company as a refund or a return, and in either case
without interest or deduction.
(d) The Securities shall not be deemed issued to or owned by the
Subscriber until the Company has executed this Subscription Agreement and
received payment for the shares of Common Stock subscribed for herein (evidenced
by a receipt), such executed agreement and receipt constituting evidence of
Subscriber's ownership interest in the Common Stock.
(e) The Securities have not been registered under the Securities Act
of 1933, as amended, or any applicable state law (collectively, the "Securities
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Act"): further, the Securities may not be sold, offered for sale, transferred,
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pledged, hypothecated or otherwise disposed of except in compliance with the
Securities Act: further, the legal consequences of the foregoing mean that the
Subscriber must bear the economic risk of the investment in the Securities for
an indefinite period of time: further, if the Subscriber desires to sell or
transfer all or any part of the Securities, the Company may require the
Subscriber's counsel to provide a legal opinion that the transfer may be made
without registration under the Securities Act and applicable state securities
laws; further, other restrictions discussed elsewhere herein may be applicable;
and further, the Subscriber is subject to the restriction on transfer described
herein and the Company will issue stop transfer orders with the Company's
transfer agent to enforce such restrictions.
(f) No federal or state agency has made any findings or determination
as to the fairness of an investment in the Company, or any recommendation or
endorsement of this investment.
7. Representations and Warranties of the Subscriber. The Subscriber
represents and warrants to the Company as follows:
(a) Subscriber's commitment to investments that are not readily
marketable is not disproportionate to Subscriber's net worth, and Subscriber's
investment in the Securities will not cause such overall commitment to become
excessive.
(b) Subscriber has the financial ability to bear the economic risks of
Subscriber's investment in the Securities, has adequate means of providing for
Subscriber's current needs and
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personal contingencies, and has no need for liquidity in this investment.
(c) Subscriber has evaluated the high risks of investing in the
Company and has such knowledge and experience in financial and business matters
in general and in particular with respect to this type of investment that
Subscriber is capable of evaluating the merits and risks of any investment in
the Securities. Subscriber is aware that there is no guarantee that the
Subscriber will realize any gain from this investment, and that the Subscriber
could lose the total amount of the Subscriber's investment in the Securities.
(d) Subscriber has carefully read the Memorandum for the Securities
and all the exhibits to the Memorandum and has been given the opportunity to ask
questions of and receive answers from the Company concerning the terms and
conditions of this investment, and to obtain additional information necessary to
verify the accuracy of the information Subscriber desired in order to evaluate
Subscriber's investment, and in evaluating the suitability of this investment
Subscriber has not relied upon any representations or other information (whether
oral or written), other than that furnished to Subscriber by the Company or its
representatives.
(e) Subscriber has had the opportunity to discuss with Subscriber's
professional, legal, tax, and financial advisors the suitability of an
investment in the Securities for Subscriber's particular tax and financial
situation and all information that Subscriber has provided to the Company
concerning Subscriber and Subscriber's financial position is correct and
complete as of the date set forth below, and if there should be any material
change in such information prior to Subscriber's admission as a shareholder of
the Company, Subscriber will immediately provide such information to the
Company.
(f) The address shown under the Subscriber's signature at the end of
this Subscription Agreement is the Subscriber's principal residence, if
Subscriber is an individual, or its principal business address if a corporation
or other entity.
(g) In making the decision to purchase the Securities, Subscriber has
relied solely upon independent investigations made by Subscriber or on
Subscriber's behalf.
(h) Subscriber is acquiring the Securities for Subscriber's own
personal account, for investment purposes only, and is not purchasing with a
view to, or for, the resale, distribution, subdivision or fractionalization
thereof, and shall not make any sales, or pledge or other transfer thereof
without registration under the Securities Act and any applicable securities laws
of any stale unless an exemption from registration is available under those
laws.
(i) Subscriber is an accredited investor as that term is defined in
Section 501 (a) under Regulation D promulgated by the Securities and Exchange
Commission under the Securities Act. Subscriber is financially able to bear the
economic risk of this investment, including the ability to afford holding the
Securities for an indefinite period of time.
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(j) FOR PARTNERSHIPS, CORPORATIONS, TRUSTS, OR OTHER ENTITIES ONLY:
If the Subscriber is a partnership, corporation, trust or other entity, (i) the
Subscriber represents and warrants that it was not organized or reorganized for
the specific purpose of acquiring the Securities, (ii) the person on behalf of
Subscriber executing this Agreement has the full power and authority to execute
this Agreement on behalf of such entity and to make the representations and
warranties made herein on its behalf, and (iii) this investment has been
affirmatively authorized, if required, by the governing board of such entity and
is not prohibited by the governing documents of the entity.
(k) The Subscriber understands that the purchase of the Securities is
a highly speculative investment and involves a high degree of risk, including
but not limited lo the risk of economic loss from operations of the Company and
risks described under the heading "Risk Factors" in the Memorandum that the
Company may need additional financing in the future, and that the Company makes
no assurance whatever concerning the present or prospective value of the
Debentures.
The foregoing representations, warranties, agreements, undertakings and
acknowledgments are made by Subscriber with the intent that they be relied upon
in determining Subscriber's suitability as a purchaser of the Securities. In
addition, Subscriber agrees to notify the Company immediately of any change in
any representation, warranty or other information. If more than one person is
signing this Agreement, each representation, warranty and undertaking herein
shall be a joint and several representation, warranty and undertaking of each
such person.
8. Indemnity by Subscriber. The Subscriber understands and acknowledges
that the Company and its officers and directors are relying upon the
representations, warranties and agreements made by the Subscriber to and with
the Company herein and, thus, hereby agrees to indemnify the Company, its
officers and directors, agents, attorneys, and employees, and agrees to hold
each of them harmless from and against any and all loss, damage, liability, or
expense, including reasonable attorneys' fees, that it or any of them may
suffer, sustain, or incur by reason of or in connection with any
misrepresentation or breach of warranty or agreement made by the Subscriber
under this Agreement, or in connection with the sale or distribution of the
Securities by the Subscriber in violation of the Securities Act or any other
applicable law.
9. Miscellaneous Provisions.
(a) No Assignment. The Subscriber agrees that the Subscriber may not
transfer, assign, cancel, terminate or revoke this Agreement or any agreement of
the Subscriber made hereunder (except as otherwise specifically provided
herein).
(b) Further Assurances. At any time and from time to time after the
date of this Agreement, each party shall execute such additional instruments and
take such other and further actions as may be reasonably requested by any other
party to confirm or perfect title to any
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property transferred hereunder or otherwise to carry out the intent and purpose
of this Agreement. In addition, in the event the Company or its executive
officers request additional representations by Subscriber, or documentation of
the representations herein set forth, in order better to evaluate Subscriber's
suitability for investment in the Company, the Subscriber will promptly furnish
such additional representations or documentation or, in the alternative, if the
Subscriber considers such additional request to be unreasonable, the Subscriber
will request that his, her or its subscription for the Securities be withdrawn.
(c) Waiver. Any failure on the part of any party hereunder to comply
with any of their obligations, agreements or conditions hereunder may be waived
in writing by the party to whom such compliance is owed; however, waiver on one
occasion does not operate to effectuate a waiver on any other occasion.
(d) Headings. The article and paragraph headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(e) Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH. THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
(f) No Oral Modification. This Agreement may be amended solely in
writing, and only after the mutual agreement of the parties affected thereby.
(g) Survival of Representations, Warranties and Covenants. The
representations, warranties, covenants and agreements contained herein shall
survive the sale of the Securities pursuant to this Agreement.
(h) Entire Agreement; Binding Agreement. The parties have not made
any representations and warranties with respect to the subject matter hereof not
set forth herein and this Agreement contains the entire agreement between the
parties with respect to the transactions contemplated hereunder. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the parties and, as applicable, their respective heirs, personal
representatives, successors and permitted assigns.
(i) Representation of the Company. The Company has delivered to the
Holder, or has otherwise confirmed delivery to the Holder, of the Company's
Memorandum, including all supplements and Exhibits thereto, in connection with
the sale of the Securities. To the best of the Company's knowledge, the
Memorandum does not, at the date thereof, and as amended or supplemented through
the closing date will not at the closing date, contain any untrue statement
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of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein in light of
circumstances under which they were made not misleading.
(j) Stockholder Voting Agreement and Proxy.
(i) For a period of 12 months from the date of the closing of
this offering, the Subscriber agrees to vote or cause to be voted all of the
Securities acquired hereby according to the direction of either Xxxxxx X.
Xxxxxxx or Xxxxx X. Xxxxx, officers and directors of the Company, with respect
to any proposal(s) upon which the stockholders of the Company may vote,
including, but not limited to, the issuance of additional securities of the
Company in order to raise or secure additional equity investment in or debt
financing for the Company.
(ii) For a period of 12 months from the date of the closing of
this offering, this executed Agreement shall constitute an irrevocable proxy
coupled with an interest pursuant to the stockholders voting agreement set forth
above in subsection (j)(i) above. During such period, either Xxxxxx X. Xxxxxxx
or Xxxxx X. Xxxxx shall have the right to vote or execute a written consent on
behalf of the Securities acquired by the Subscriber pursuant to the terms and
conditions of this Agreement as Xxxxxx X. Xxxxxxx or Xxxxx X. Xxxxx, in their
sole and exclusive discretion, choose. The Subscriber shall execute any
additional proxy documents and take any further action either Xxxxxx X. Xxxxxxx
or Xxxxx X. Xxxxx xxx reasonably request to carry out the purposes of the
stockholders voting agreement set forth above.
(k) Registration Rights Agreement. The subscriber has executed and
delivered to the Company, simultaneously herewith, a registration rights
agreement substantially in the same form as attached to the Memorandum as
Exhibit C.
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ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
____________________/$______________________
(Number of Shares/Purchase Price of the shares of Common Stock Subscribed For)
Make checks payable to: SunStar Healthcare, Inc.
Manner in which Title is to be held (Please Check One):
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1. [] Individual 6. [] IRA of________________________________
2. [] Joint Tenants With 7. [] Trust/Estate/Pension or
Right of Survivorship Profit Sharing Plan
Date Opened:_____________________________
3. [] Community Property 8. [] As a Custodian for
_________________________________________
Under the Uniform Gift to
Minors Act of the State of
4. [] Tenants in Common 9. [] Married with Separate
Property
5. [] Corporation 10. [] Xxxxx of______________________________
CERTIFICATION: Under penalties of perjury, I certify that the number shown below
is my valid tax identification number and that I am not subject to backup
withholding either because I have not been notified that I am subject to backup
withholding as a result of a failure to report all interest or dividends or the
Internal Revenue Service has notified me that I am no longer subject to backup
withholding. Taxpayer Identification Number: ____________________________.
IN WITNESS WHEREOF, the undersigned has executed this Agreement on this
________ day of ____________, 1998.
_______________________________
Signature of Subscriber
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EXECUTION BY SUBSCRIBER WHO IS A NATURAL PERSON
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Exact Name in Which Title is to be Held
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(Signature)
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Name (Please Print)
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Residence Address: Number and Street
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City State Zip Code
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Social Security Number
Accepted this ___________ day of ______________, 1998, on behalf of
SunStar Healthcare, Inc.
SUNSTAR HEALTHCARE, INC.
By:
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Name:
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Title:
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EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation, Partnership, Trust, Etc.)
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Name of Entity (Please Print)
By:
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Title:
---------------------------------
Attest:
--------------------------------
Title:
---------------------------------
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Address
---------------------------------------
Taxpayer Identification Number
Accepted this ________ day of ________________________, 1998, on behalf of
SunStar Healthcare, Inc.
SUNSTAR HEALTHCARE, INC.
By:
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Name:
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Title:
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