Exhibit 4.3
-----------
FORM OF
SUBSCRIPTION AGREEMENT
Subscription Agreement (this "Agreement"), made this __ day of
__________, 2002 by and between Wentworth II, Inc., a Delaware corporation (the
"Company"), and ________________ (the "Subscriber", and collectively with all
other entities entering into subscription agreements for Shares, the
"Subscribers"). In consideration of the mutual promises and covenants herein
contained, the parties hereto (the "Parties") agree as follows:
ARTICLE I.
SUBSCRIPTION
1.1. Subscription Offer. Subject to the terms and conditions hereof
and to acceptance by the Company, the Subscriber hereby offers to purchase _____
shares (the "Shares") of the Company's common stock, par value $.01 per share
(the "Common Stock"), at a price per share of $1.00, for a total purchase price
of $__________ (the "Purchase Price"). Such offer can be revoked only upon
written notice by the Subscriber to the Company, which notice is received by the
Company prior to acceptance of the offer. The Purchase Price is payable in full
by check made payable to "Key Bank National Association, Wentworth II, Inc.
Escrow Account administered by Corporate Stock Transfer" and sent to Corporate
Stock Transfer, Inc., as Administrator for Wentworth II, Inc., 0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
1.2. Acceptance of Subscription. The Company reserves the right to
reject the Subscriber's offer in whole or in part, for any reason, and to
allocate less than the maximum number of Shares the Subscriber hereby offers to
purchase. Any sale of Shares to the Subscriber shall not be deemed to occur
until the Subscriber's offer is accepted in writing by the Company. The
Subscriber shall not have any recourse against the Company if a purchase offer
is rejected in whole or in part. The Company shall reasonably notify the
Subscriber in writing of the acceptance of a purchase offer. If the offer is
rejected in whole or in part, the Company will promptly return to the
Subscriber, without deduction or interest, all or a ratable portion of the
subscription price, as the case may be, together with all executed documents
tendered by the Subscriber. If the purchase offer is rejected in part only, the
Subscriber shall immediately complete, execute and deliver to the Company new
subscription documents for the appropriate reduced amount. 50,000 Shares are
being offered by the Company on a "best efforts, all or none basis." Thus,
unless all 50,000 Shares are sold, none will be sold. Initially, any funds
received from Subscribers will be held in a non-interest bearing escrow account
with an insured depository institution. If the Company is not successful in its
efforts to sell 50,000 Shares in the initial 90-day offering, all funds received
from Subscribers will be promptly returned to the Subscribers. If the Company is
successful, after receipt and acceptance of subscriptions for 50,000 Shares,
funds held in the escrow account shall bear interest.
1.3. Escrow of Funds and Certificate and Restriction on Transfer of
Shares. The Shares have been registered under the Securities Act of 1933, as
amended (the "Act"), and the offering thereof is being conducted pursuant to
Rule 419 under the Act ("Rule 419"). In accordance with that rule, the
Subscriber's funds, representing the Purchase Price, delivered pursuant to this
agreement, shall be promptly deposited into an escrow account.
Rule 419 requires that before the Shares can be released, the Company
must first execute an agreement to acquire a business. The agreement must
provide for the acquisition of a business or assets for which the fair value of
the business or net assets to be acquired represents at least 80% of the maximum
offering proceeds and which must also represent 50% of the gross proceeds of the
offering pursuant to requirements of the Colorado Securities Act.
Once the acquisition agreement has been executed, Rule 419 requires
the Company to update the registration statement with a post-effective
amendment. The post-effective amendment must contain information about:
(i) the proposed acquisition candidate and its business,
including the requisite financial statements;
(ii) the results of the offering;
(iii) the use of the funds disbursed from the escrow account;
and
(iv) the terms of the reconfirmation offer.
1.4. The Reconfirmation Offering. The reconfirmation offer must
commence within five business days after the effective date of the
post-effective amendment and must include the following conditions:
(i) the prospectus contained in the post-effective amendment
will be sent to each Subscriber within five business days
after the effective date of the post-effective amendment;
(ii) each Subscriber will have no fewer than 20, and no more
than 45, business days from the effective date of the
post-effective amendment to notify the Company in writing
that he elects to remain a Subscriber;
(iii) if the Company does not receive written notification from
any Subscriber within 45 business days following the
effective date, the Subscriber's escrowed securities will
be returned to the Company and the Subscriber's escrowed
funds to the Subscriber;
(iv) unless Subscribers representing 80% of the maximum
offering proceeds elect to remain Subscribers, the
acquisition of the target business would be prevented,
deposited securities held in escrow will be returned to
the Company and the escrowed funds, plus interest, to the
Subscribers; and
-2-
(v) if a consummated acquisition has not occurred within 18
months from the date of this prospectus, the deposited
securities held in the escrow account will be returned to
the Company and the escrowed funds, plus interest, to the
Subscribers.
The Shares may be released to Subscribers after the escrow agent has
received a signed representation from the Company and any other evidence
acceptable by the escrow agent that:
(i) the Company has executed an agreement for the acquisition
of a business for which the fair market value of the
business represents at least 80% of the maximum offering
proceeds and the Company has filed the required
post-effective amendment;
(ii) the completion of a transaction or series of transactions
whereby at least 50% of the gross offering proceeds have
been committed to a specific line of business as defined
in the Colorado Securities Act and regulations;
(iii) the expiration of nine (9) days after the receipt by the
Colorado Commissioner of Securities of a notice of the
proposed release of funds or authorization of the
Commissioner of any earlier release;
(iv) the post-effective amendment has been declared effective;
(v) the reconfirmation offer has been completed;
(vi) the Company has satisfied all of the prescribed
conditions of the reconfirmation offer; and
(vii) the acquisition of the business or net assets with the
fair value of at least 80% of the maximum proceeds has
been consummated.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1. Status of Subscriber. The Subscriber, if an individual, is at
least 21 years of age. If an association, each individual of the association is
at least 21 years of age.
2.2. Access to Information. The Subscriber represents that he has
received and retained the Company's prospectus, dated __________, 2002 (the
"Prospectus"), a copy of which accompanied this Subscription Agreement, and has
carefully read and understood it, particularly the section entitled "Risk
Factors." The Subscriber acknowledges that such review of the Prospectus, or the
Risk Factors section thereof, does not constitute a waiver of any rights
whatsoever under the Securities Act of 1933, as amended.
-3-
2.3. Understanding of Investment Risks. The Subscriber understands
that there is no market for the Shares and no assurance that a market will
develop, and that realization of the objectives of the Company is subject to
significant economic and business risks as set forth in the Prospectus.
2.4. Residence of the Subscriber. The residence of the Subscriber set
forth below is the true and correct residence of Subscriber and the Subscriber
has no present intention of becoming a resident of domiciliary of any other
state, country, or jurisdiction.
2.5. Further Assurance. Subscriber will execute any document required
to be executed by a governmental authority in connection with the acquisition of
the Shares.
2.6. Qualification to Make Investment. The Subscriber is qualified
under the jurisdiction of the Subscriber's residence to make this investment.
2.7. For Partnership, Corporations, Trusts or Other Entities Only. If
the Subscriber is a partnership, corporation, trust or other entity:
The Subscriber has the full power and authority to execute this
Subscription Agreement on behalf of the entity and to make the representations
and warranties made herein on its behalf of this investment in the Company has
been affirmatively authorized by the governing board of the entity and is not
prohibited by the governing documents of the entity.
2.8. Purchase as Principal. The Subscriber represents that he is
purchasing the shares as principal.
ARTICLE III.
MISCELLANEOUS PROVISIONS
3.1. Captions and Headings. The Article and Section headings
throughout this Agreement are for convenience of reference only and shall in no
way be deemed to define, limit or add to any provision of this Agreement.
3.2. Entire Agreement; Amendment. This Agreement states the entire
agreement and understanding of the Parties and shall supersede all prior
agreements and understandings. No amendment of the Agreement shall be made
without the express written consent of the Parties.
3.3. Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect any other provision
hereof, which shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
3.4. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado for contracts made and to
be performed within the State of Colorado.
-4-
3.5. Notices. All notices, requests, demands, consents, and other
communications hereunder shall be transmitted in writing and shall be deemed to
have been duly given when hand-delivered or sent by certified mail, postage
prepaid, with return receipt requested, addressed to the Parties as follows: to
the Company and to the Subscriber, at the respective address indicated below.
Any Party may change his address for purposes of this Section by giving notice
as provided herein.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
-5-
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year
first above written.
WENTWORTH II, INC.
By: _________________________
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
Address: 000 Xx. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Tel: (000) 000-0000
SUBSCRIBER:
_____________________________
Name:
Address:
_____________________________
_____________________________
_____________________________
Tel: _______________________
Fax: ________________________
SS# or Tax ID #: ____________
-0-
XXXXXXXXX II, INC.
000 Xx. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
_______________________________________________________________________________
To: ___________________
Dear Investor:
In connection with your proposed investment (your "Investment") in Wentworth II,
Inc., a Delaware corporation (the "Company"), please be advised that your offer
to purchase _____ shares of the Company's common stock, par value $.01 per
share, at a price per share of $1.00, for a total purchase price of $__________
(the "Purchase Price") has been accepted. This letter constitutes the notice of
acceptance set forth in Section 1.2 of the Subscription Agreement entered into
between you and the Company in connection with your Investment (the
"Subscription Agreement"). In the event that the amount previously tendered by
you to the Company exceeds the Purchase Price, a check for the excess amount
payable to you is enclosed with this letter.
As set forth in the Subscription Agreement, and in the Prospectus referenced in
Section 2.2 thereof, the Purchase Price will be held in an escrow account until
the Company consummates a business combination or the Purchase Price is returned
to you.
If you have any questions or concerns, please contact ________________ at
___________.
Thank you for your support.
Sincerely,
Xxxxxxx X. Xxxxxx
Secretary, Wentworth II, Inc.
