E GLOBAL MARKETING INC. REGULATION D SUBSCRIPTION AGREEMENT AND INVESTMENT REPRESENTATION
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
REGULATION
D SUBSCRIPTION AGREEMENT
AND
INVESTMENT REPRESENTATION
SECTION
1.
1.1 Subscription.
The undersigned, intending to be
legally bound, hereby irrevocably subscribes for and agrees to purchase
__________________ (________) shares (the “Purchased Shares” or “Securities”) of
the common stock, par value $0.001 per share (the “Common Stock”), of E Global
Marketing Inc., a New York corporation (the "Company"), in a transaction exempt
from registration requirements of the Securities Act of 1933, as amended (the
“Securities Act”). The undersigned understands that the Purchased
Shares are being sold in connection with an offering by the Company of up to
5,000,000 shares Common Stock at $0.025 per share for a total maximum of
$125,000.00. The minimum investment hereunder shall be 8,000 shares of Common
Stock.
1.2 Purchase of
Shares.
The undersigned understands and
acknowledges that the purchase price to be remitted to the Company in exchange
for the Purchased Shares shall be $ __________ (the “Purchase
Price”). Payment of the Purchase Price shall be made by the
undersigned at the Closing (hereafter defined) by wire transfer payment to “E
Global Marketing Inc.” in the full amount of the Purchase Price. Wire
transfer instructions are follows:
|
Account Name:
|
|
|
Bank
Name:
|
Sovereign
Bank
|
|
Bank
Address:
|
▇▇▇▇
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
Routing
No.:
|
▇▇▇▇▇▇▇▇▇
|
|
Account
No.
|
7921003203
|
The
Company shall deliver the Purchased Shares to the undersigned promptly at the
Closing.
1.3 Legend. The
undersigned understands that, until registered under the Securities Act or
transferred pursuant to the provisions of Rule 144 as promulgated by the
Securities and Exchange Commission, all certificates evidencing any of the
Shares, whether upon initial issuance or upon any transfer thereof, shall bear a
legend, prominently stamped or printed thereon, reading substantially as
follows:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR WITHOUT AN EXEMPTION THEREFROM OR AN OPINION OF COUNSEL IN A
FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933.”
1.4 Acceptance or
Rejection.
(a) The
undersigned understands and agrees that the Company reserves the right to reject
this subscription for the Purchased Shares if, in its reasonable judgment, it
deems such action in the best interest of the Company, at any time prior to the
Closing, notwithstanding prior receipt by the undersigned of notice of
acceptance of the undersigned's subscription.
(b) The
undersigned understands and agrees that its subscription for the Purchased
Shares is irrevocable.
(c) In
the event the sale of the Purchased Shares subscribed for by the undersigned is
not consummated by the Company for any reason (in which event this Subscription
Agreement shall be deemed to be rejected), this Subscription Agreement and any
other agreement entered into between the undersigned and the Company relating to
this subscription shall thereafter have no force or effect.
SECTION
2.
2.1 Closing. The
closing (the "Closing") of the purchase and sale of the Purchased Shares, shall
occur at simultaneously with the acceptance by the Company of the undersigned's
subscription, as evidenced by the Company's execution of this Subscription
Agreement.
(a) The
undersigned understands and agrees that this offering is being conducted on a
"best efforts" basis, with no minimum. Upon acceptance of
subscription agreements, funds received will be immediately available for use by
the Company.
(b) The undersigned understands and
agrees the Company reserves the right to terminate this offering at anytime
without any notice.
SECTION
3.
3.1 Investor Representations and
Warranties. The undersigned hereby acknowledges,
represents and warrants to, and agrees with, the Company and its affiliates as
follows:
(a) The
undersigned is acquiring the Securities for his own account as principal, not as
a nominee or agent, for investment purposes only, and not with a view to, or
for, resale, distribution or fractionalization thereof in whole or in part and
no other person has a direct or indirect beneficial interest in such Securities
or any portion thereof. Further, the undersigned does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to the Securities for which the undersigned is subscribing or any part
of the Securities.
- 2
-
(b) The
undersigned has full power and authority to enter into this Agreement, the
execution and delivery of this Agreement has been duly authorized, if
applicable, and this Agreement constitutes a valid and legally binding
obligation of the undersigned, except as
such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
(c) The
undersigned is not subscribing for the Securities 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, or any solicitation of a subscription by
person previously not known to the undersigned in connection with investment
securities generally.
(d) The
undersigned understands that, except as set forth herein, the Company is under
no obligation to register the Securities under the Securities Act of 1933, as
amended (the “Securities Act”), or to assist the undersigned in complying with
the Securities Act or the securities laws of any state of the United States or
of any foreign jurisdiction.
(e) The
undersigned is (i) experienced in making investments of the kind described in
this Agreement and the related documents, (ii) able, by reason of the business
and financial experience of its officers (if an entity) and professional
advisors (who are not affiliated with or compensated in any way by the Company
or any of its affiliates or selling agents), to protect its own interests in
connection with the transactions described in this Agreement, and the related
documents, and (iii) able to afford the entire loss of its investment in the
Securities.
(f) The
undersigned acknowledges his understanding that the offering and sale of the
Securities is intended to be exempt from registration under the Securities
Act. In furtherance thereof, in addition to the other representations
and warranties of the undersigned made herein, the undersigned further
represents and warrants to and agrees with the Company and its affiliates as
follows:
(1) The
undersigned realizes that the basis for the exemption may not be present if,
notwithstanding such representations, the undersigned has in mind merely
acquiring the Securities for a fixed or determinable period in the future, or
for a market rise, or for sale if the market does not rise. The
undersigned does not have any such intention;
(2) The
undersigned has the financial ability to bear the economic risk of his
investment, has adequate means for providing for his current needs and personal
contingencies and has no need for liquidity with respect to his investment in
the Company; and
- 3
-
(3) The
undersigned has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of the prospective
investment in the Securities. The undersigned also represents it has
not been organized for the purpose of acquiring the Securities;
and
(4) The
undersigned has been provided an opportunity for a reasonable period of time
prior to the date hereof to obtain additional information concerning the
offering of the Securities, the Company and all other information to the extent
the Company possesses such information or can acquire it without unreasonable
effort or expense.
(g) The
undersigned is not relying on the Company, or its affiliates or agents with
respect to economic considerations involved in this investment. The
undersigned has relied solely on its own advisors.
(h) No
representations or warranties have been made to the undersigned by the Company,
or any officer, employee, agent, affiliate or subsidiary of the Company, other
than the representations of the Company contained herein, and in subscribing for
Securities the undersigned is not relying upon any representations other than
those contained herein.
(i) Any
resale of the Securities shall only be made in compliance with exemptions from
registration afforded by the Securities Act and the rules and regulations
promulgated thereunder. Further, any such sale of the Securities in
any jurisdiction outside of the United States will be made in compliance with
the securities laws of such jurisdiction. The undersigned will not
offer to sell or sell the Securities in any jurisdiction unless the undersigned
obtains all required consents, if any.
(j) The
undersigned understands that the Securities are being offered and sold to him in
reliance on an exemption from the registration requirements of United States
federal and state securities laws under Regulation D promulgated under the
Securities Act and that the Company is relying upon the truth and accuracy of
the representations, warranties, agreements, acknowledgments and understandings
of the undersigned set forth herein in order to determine the applicability of
such exemptions and the suitability of the undersigned to acquire the
Securities.
(k) The
undersigned is an “accredited investor” as that term is defined in Rule 501 of
the General Rules and Regulations under the Securities Act by reason of Rule
501(a)(3).
(l) The
undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his
entire investment.
(m) The
undersigned's overall commitment to investments which are not readily marketable
is not disproportionate to the undersigned's net worth, and an investment in the
Securities will not cause such overall commitment to become
excessive.
(n) The
undersigned has received all documents, records, books and other information
pertaining to the Company, its business, its officers and directors that has
been requested by the undersigned.
- 4
-
(o) The
undersigned represents and warrants to the Company that the information in the
Investor Questionnaire attached hereto (the “Investor Questionnaire”) is correct
and complete as of the date hereof.
(p) Other
than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director,
stockholder, agent or representative of the Company in determining to invest in
the Securities. The undersigned has consulted, to the extent deemed
appropriate by the undersigned, with the undersigned’s own advisers as to the
financial, tax, legal and related matters concerning an investment in the
Securities and on that basis believes that his or its investment in the
Securities is suitable and appropriate for the undersigned.
(q) The
undersigned is aware that no federal or state agency has (i) made any finding or
determination as to the fairness of this investment, (ii) made any
recommendation or endorsement of the Securities or the Company, or (iii)
guaranteed or insured any investment in the Securities or any investment made by
the Company.
(r) The
undersigned understands that the price of the Securities offered hereby bears no
relation to the assets, book value or net worth of the Company and were
determined arbitrarily by the Company.
(s) The
undersigned understands that the Company is newly-formed and has no business
operations or operating history. The Company’s lack of operating
history makes it difficult to evaluate its future prospects, which are subject
to risks and uncertainties frequently encountered by start-up companies in new
and rapidly evolving markets such as the business proposed by the
Company.
(t) As
of the date of this Agreement, the Company does not have sufficient funds
available to effectuate its business plan or commence its business operations,
and the Company intends to raise funds through the sale of additional equity
shares or securities convertible or exchangeable into equity
shares. The undersigned understands that, as a result of the sale and
issuance of such additional securities, his or its voting power and percentage
ownership of the Company will be diluted and such issuances could have an
adverse effect on the market price of the Common Stock. Additionally,
the issuance of shares of preferred stock with certain rights, preferences and
privileges senior to those held by the Common Stock could diminish the
undersigned's rights to receive dividends if declared by the Board of Directors
of the Company and to receive payments upon the liquidation of the
Company.
SECTION
4.
The
Company represents and warrants to the undersigned as follows:
4.1
Organization of the
Company. The Company is a corporation duly organized and
validly existing and in good standing under the laws of the State of New York,
and has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
- 5
-
4.2 Authority. (a) The
Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Securities; (b)
the execution and delivery of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required; and (c) this Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
4.3 Capitalization. As
of the date hereof, the authorized capital stock of the Company consists of
fifty million (50,000,000) shares of Common Stock, of which as of the date
hereof twenty million one thousand (20,001,000) shares are issued and
outstanding, and five million (5,000,000) shares of preferred stock, none of
which is issued and outstanding. The Board of Directors of the Company has the
requisite power and authority, without further action by the holders of the
outstanding shares of common stock, to issue shares of preferred stock with
rights superior to the rights of the holders of shares of common stock from time
to time in one or more series, to fix the number of shares constituting any
series, and to fix the terms of any such series, including dividend rights,
dividend rates, conversion or exchange rights, voting rights, rights and terms
of redemption (including sinking fund provisions), the redemption
price and the liquidation preference or such series. As a result,
shares of preferred stock could be issued quickly and easily, negatively
affecting the rights of holders of common shares and could be issued with terms
calculated to delay or prevent a change in control or make removal of management
more difficult.
4.4 Transfer
Agent The Company is currently serving as its own transfer agent,
and plan to continue to serve in that capacity until such time as Board of
Directors of the Company believes it is necessary or appropriate to employ an
independent transfer agent in order to facilitate the creation of a public
trading market for its securities. Should the Company’s securities be
quoted on any exchange or OTC quotation system or application is made to have
the securities quoted, an independent transfer agent will be
appointed.
4.5 Exemption from Registration;
Valid Issuances. The sale and issuance of the Purchased
Shares, in accordance with the terms and on the bases of the representations and
warranties of the undersigned set forth herein, may and shall be properly issued
by the Company to the undersigned pursuant to the Business Corporation Law of
the State of New York and any applicable federal or state law, including in
compliance with an exemption from registration under the Securities Act. When
issued and paid for as herein provided, the Purchased Shares shall be duly and
validly issued, fully paid, and non-assessable. Neither the sales of the
Securities pursuant to, nor the Company's performance of its obligations under,
this Agreement shall (a) result in the creation or imposition of any liens,
charges, claims or other encumbrances upon the Securities or any of the assets
of the Company, or (b) entitle the other holders of the Common Stock of the
Company to preemptive or other rights to subscribe to or acquire the Common
Stock or other securities of the Company. The Securities shall not subject the
undersigned to personal liability by reason of the ownership
thereof.
- 6
-
4.6 No General Solicitation or
Advertising in Regard to this Transaction. Neither the Company nor any of
its affiliates nor any person acting on its or their behalf (a) has conducted or
will conduct any general solicitation (as that term is used in Rule 502(c) of
Regulation D under the Securities Act) or general advertising with respect to
any of the Securities, (b) made any offers or sales of any security or solicited
any offers to buy any security under any circumstances that would require
registration of the Common Stock under the Securities Act, or (c) made 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, or any solicitation of a subscription by
person previously not known to the undersigned in connection with investment
securities generally.
4.7 No
Conflicts. The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby, including without limitation the issuance of the
Securities, do not and will not (a) result in a violation of the Certificate of
Incorporation or By-Laws of the Company or (b) conflict with, or constitute a
material default (or an event that with notice or lapse of time or both would
become a material default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement, indenture,
instrument or any "lock-up" or similar provision of any underwriting or similar
agreement to which the Company is a party, or (c) result in a violation of any
federal, state, local or foreign law, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations) applicable
to the Company or by which any property or asset of the Company is bound or
affected nor is the Company otherwise in violation of, conflict with or in
default under any of the foregoing. The Company is not required under
federal, state or local law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or issue and sell the Securities in accordance
with the terms hereof (other than any federal or state securities
filings that may be required to be made by the Company); provided that the
Company is assuming and relying upon the accuracy of the relevant
representations and agreements of the undersigned herein.
4.8 Litigation and Other
Proceedings. There are no lawsuits or proceedings pending or to the
best knowledge of the Company threatened, against the Company, nor has the
Company received any written or oral notice of any such action, suit, proceeding
or investigation. No judgment, order, writ, injunction or decree or
award has been issued by or, so far as is known by the Company, requested of any
court, arbitrator or governmental agency which would have a material adverse
effect on the business, operations, properties, assets, prospects or condition
(financial or otherwise) of the Company. In 1997, the Chief Executive Officer of
the Company was convicted of one (1) count of mail fraud for which he received a
two (2) year supervisory release.
- 7
-
4.9 No Misleading or Untrue
Communication. The Company, any person representing the Company,
and, to the knowledge of the Company, any other person selling or offering to
sell the Securities, if any, in connection with the transactions contemplated by
this Agreement, have not made, at any time, any written or oral communication in
connection with the offer or sale of the same which contained any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements, in the light of the circumstances under which they
were made, not misleading.
4.10 Certificate of Incorporation
and By-laws. The Company has delivered to the undersigned true,
correct and complete copies of the Certificate of Incorporation and By-laws of
the Company, including all amendments thereto, as in effect on the date
hereof.
SECTION
5.
5.1 Indemnity. The
undersigned agrees to indemnify and hold harmless the Company, its officers and
directors, employees and its affiliates and their respective successors and
assigns and each other person, if any, who controls any thereof, against any
loss, liability, claim, damage and expense whatsoever (including, but not
limited to, any and all reasonable expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation commenced or
threatened or any claim whatsoever) arising out of or based upon any false
representation or warranty or breach or failure by the undersigned to comply
with any covenant or agreement made by the undersigned herein or in any other
document furnished by the undersigned to any of the foregoing in connection with
this transaction.
5.2 Modification. Neither
this Agreement nor any provisions hereof shall be modified, discharged or
terminated except by an instrument in writing signed by the party against whom
such waiver, change, discharge or termination is sought.
5.3 Notices. Any
notice, demand or other communication which any party hereto may be required, or
may elect, to give to anyone interested hereunder shall be sufficiently given if
(a) deposited, postage prepaid, in a United States mail letter box, registered
or certified mail, return receipt requested, addressed to such address as may be
given herein, or (b) delivered personally at such address.
5.4 Counterparts. This
Agreement may be executed through the use of separate signature pages or in any
number of counterparts and by facsimile, and each of such counterparts shall,
for all purposes, constitute one agreement binding on all parties,
notwithstanding that all parties are not signatories to the same counterpart.
Signatures may be facsimiles.
5.5 Binding
Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and
assigns. If the undersigned is more than one person, the obligation
of the undersigned 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 heirs, executors,
administrators and successors.
- 8
-
5.6 Entire
Agreement. This Agreement and the documents referenced herein
contain the entire agreement of the parties and there are no representations,
covenants or other agreements except as stated or referred to herein and
therein.
5.7 Assignability. This
Agreement is not transferable or assignable by the undersigned. Any
such attempted assignment shall be null and void and of no force or
effect.
6.8 Applicable
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
conflicts of law principles.
5.9 Pronouns. The
use herein of the masculine pronouns "him" or "his" or similar terms shall be
deemed to include the feminine and neuter genders as well and the use herein of
the singular pronoun shall be deemed to include the plural as well.
[remainder
of page intentionally left blank; signature pages to follow]
- 9
-
IN WITNESS WHEREOF, the undersigned has
executed this Agreement on the day of
_________________, 2007.
Number of
Shares
_________________
Amount of
Investment:
$__________________
INVESTOR:
___________________________
Name:
- 10
-
ACCEPTANCE
OF SUBSCRIPTION
(to be
filed out only
by the Company)
The
Company hereby accepts the above application for subscription for Purchased
Shares on behalf of the Company.
|
Dated:
______________, 2007
|
|||
|
By:
|
|||
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
President
|
||
- 11
-
INVESTOR
QUESTIONNAIRE
|
A.
|
General Information
|
||
|
1.
|
Print
Full Name of Investor:
|
Individual:
|
|
|
|
|||
|
First,
Middle, Last
|
|||
|
Partnership,
Corporation, Trust, Custodial Account, Other:
|
|||
|
|
|||
|
Name
of Entity
|
|||
|
2.
|
Address
for Notices:
|
|
|
|
3.
|
Name
of Primary Contact Person:
|
||
|
Title:
|
|||
|
4.
|
Telephone
Number:
|
|
|
|
5.
|
E-Mail
Address:
|
|
|
|
6.
|
Facsimile
Number:
|
|
|
|
7.
|
Permanent
Address:
|
|
|
|
(if
different from Address for Notices above)
|
|||
|
8.
|
Authorized
Signatory:
|
|
|
|
Title:
|
|||
|
Telephone
Number:
|
|
||
|
Facsimile
Number:
|
|
||
- 12
-
B. Accredited Investor
Status
The
Investor represents and warrants that the Investor is an “accredited investor”
within the meaning of Rule 501 of Regulation D under the Securities Act of 1933,
as amended (the “Securities Act”), and has checked the box or boxes below which
are next to the categories under which the Investor qualifies as an accredited
investor:
FOR
INDIVIDUALS:
|
o
|
A
natural person with individual net worth (or joint net worth with spouse)
in excess of $1 million. For purposes of this item, “net worth” means the
excess of total assets at fair market value, including home, home
furnishings and automobiles (and including property owned by a spouse),
over total liabilities.
|
|
o
|
A
natural person with individual income (without including any income of the
Investor’s spouse) in excess of $200,000, or joint income with spouse of
$300,000, in each of the two most recent years and who reasonably expects
to reach the same income level in the current
year.
|
FOR
ENTITIES:
|
o
|
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.
|
|
o
|
An
insurance company as defined in Section 2(13) of the Securities
Act.
|
|
o
|
A
broker-dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
|
|
o
|
An
investment company registered under the Investment Company Act of 1940, as
amended (the “Investment Company Act”). If an Investor has checked this
box, please contact ▇▇▇▇▇ ▇▇▇▇▇, Esq. at (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for additional information that will be
required.
|
|
o
|
A
business development company as defined in Section 2(a)(48) of the
Investment Company Act.
|
|
|
|
|
o
|
A
small business investment company licensed by the Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
|
- 13
-
|
o
|
A
private business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940. If an Investor has checked this box,
please contact ▇▇▇▇▇ ▇▇▇▇▇, Esq. at (▇▇▇) ▇▇▇-▇▇▇▇ or
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for additional information that will be
required.
|
|
o
|
An
organization described in Section 501(c)(3) of the Internal Revenue Code,
a corporation, Massachusetts or similar business trust, or partnership,
not formed for the specific purpose of acquiring the Purchased Shares,
with total assets in excess of $5 million.
|
|
o
|
A
trust with total assets in excess of $5 million not formed for the
specific purpose of acquiring the Purchased Shares, whose purchase is
directed by a person with such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Company and the purchase of the Purchased
Shares.
|
|
o
|
An
employee benefit plan within the meaning of ERISA if the decision to
invest in the Purchased Shares is made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which is either a bank, savings and loan
association, insurance company, or registered investment adviser, or if
the employee benefit plan has total assets in excess of $5 million or, if
a self-directed plan, with investment decisions made solely by persons
that are accredited investors.
|
|
o
|
A
plan established and maintained by a state, its political subdivisions, or
any agency or instrumentality of a state or its political subdivisions,
for the benefit of its employees, if the plan has total assets in excess
of $5 million.
|
- 14
-
|
o
|
An
entity, including a grantor trust, in which all of the equity owners are
accredited investors as determined under any of the foregoing paragraphs
(for this purpose, a beneficiary of a trust is not an equity owner, but
the grantor of a grantor trust is an equity
owner).
|
C. Supplemental Data for
Entities
1. If
the Investor is not a natural person, furnish the following supplemental data
(natural persons may skip this Section C of the Investor
Questionnaire):
Legal
form of entity (trust, corporation, partnership, etc.):
_________________________
Jurisdiction
of organization: ________________________________________________
2. Was
the Investor organized for the specific purpose of acquiring the Purchased
Shares?
|
o Yes
|
o No
|
If the
answer to the above question is “Yes,” please contact ▇▇▇▇▇ ▇▇▇▇▇, Esq. at (▇▇▇)
▇▇▇-▇▇▇▇ or ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for additional information that will be
required.
3. Are
shareholders, partners or other holders of equity or beneficial interest in the
Investor able to decide individually whether to participate, or the extent of
their participation, in the Investor’s investment in the Company (i.e., can
shareholders, partners or other holders of equity or beneficial interest in the
Investor determine whether their capital will form part of the capital invested
by the Investor in the Company)?
|
o Yes
|
o No
|
If the
answer to the above question is “Yes,” please contact ▇▇▇▇▇ ▇▇▇▇▇, Esq. at (▇▇▇)
▇▇▇-▇▇▇▇ or ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for additional information that will be
required.
4(a). Please
indicate whether or not the Investor is, or is acting on behalf of, (i) an
employee benefit plan within the meaning of Section 3(3) of ERISA, whether or not such plan is
subject to ERISA, or (ii) an entity which is deemed to hold the assets of
any such employee benefit plan pursuant to 29 C.F.R. § 2510.3-101. For example,
a plan which is maintained by a foreign corporation, governmental entity or
church, a ▇▇▇▇▇ plan covering no common-law employees and an individual
retirement account are employee benefit plans within the meaning of Section 3(3)
of ERISA but generally are not subject to ERISA (collectively, “Non-ERISA Plans”). In
general, a foreign or US entity which is not an operating company and which is
not publicly traded or registered as an investment company under the Investment
Company Act of 1940, as amended, and in which 25% or more of the value of any
class of equity interest is held by employee pension or welfare plans (including
an entity which is deemed to hold the assets of any such plan), would be deemed
to hold the assets of one or more employee benefit plans pursuant to 29 C.F.R. §
2510.3-101. However, if only Non-ERISA Plans were invested in such an entity,
the entity generally would not be subject to ERISA. For purposes of determining
whether this 25% threshold has been met or exceeded, the value of any equity
interest held by a person (other than such a plan or entity) who has
discretionary authority or control with respect to the assets of the entity, or
any person who provides investment advice for a fee (direct or indirect) with
respect to such assets, or any affiliate of such a person, is
disregarded.
- 15
-
|
o Yes
|
o No
|
4(b). If
the Investor is, or is acting on behalf of, such an employee benefit plan, or is
an entity deemed to hold the assets of any such plan or plans, please indicate
whether or not the Investor is subject to ERISA.
|
o Yes
|
o No
|
4(c.) If
the Investor answered “Yes” to question 4.(b) and the Investor is investing the
assets of an insurance company general account, please indicate what percentage
of the Investor’s assets the purchase of the Purchased Shares is subject to
ERISA. ___________%.
5.
Does the amount of the Investor’s subscription for the Purchased Shares
in the Company exceed 40% of the total assets (on a consolidated basis with its
subsidiaries) of the Investor?
|
o Yes
|
o No
|
If the
question above was answered “Yes,” please contact ▇▇▇▇▇ ▇▇▇▇▇, Esq. at (▇▇▇)
▇▇▇-▇▇▇▇ or ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for additional information that will be
required.
6(a). Is
the Investor a private investment company which is not registered under the
Investment Company Act, in reliance on Section 3(c)(1) or Section 3(c)(7)
thereof?
|
o Yes
|
o No
|
6(b). If
the question above was answered “Yes,” was the Investor formed prior to April
30, 1996?
|
o Yes
|
o No
|
If the
questions set forth in (a) and (b) above were both answered “Yes,” please
contact ▇▇▇▇▇ ▇▇▇▇▇, Esq. at (▇▇▇) ▇▇▇-▇▇▇▇ or ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for
additional information that will be required.
7(a). Is
the Investor a grantor trust, a partnership or an S-Corporation for US federal
income tax purposes?
|
o Yes
|
o No
|
- 16
-
7(b). If
the question above was answered “Yes,” please indicate whether or
not:
(i) more
than 50 percent of the value of the ownership interest of any beneficial owner
in the Investor is (or may at any time during the term of the Company be)
attributable to the Investor’s (direct or indirect) interest in the Company;
or
|
o Yes
|
o No
|
(ii) it
is a principal purpose of the Investor’s participation in the Company to permit
the Partnership to satisfy the 100 partner limitation contained in US Treasury
Regulation Section 1.7704-1(h)(3).
|
o Yes
|
o No
|
If either
question above was answered “Yes,” please contact ▇▇▇▇▇ ▇▇▇▇▇, Esq. at (▇▇▇)
▇▇▇-▇▇▇▇ or ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for additional information that will be
required.
8. If
the Investor’s tax year ends on a date other than December 31, please indicate
such date below:
|
(Date)
|
D.
Related
Parties
1. To
the best of the Investor’s knowledge, does the Investor control, or is the
Investor controlled by or under common control with, any other investor in the
Company?
|
o Yes
|
o No
|
If the answer above was answered “Yes”,
please identify such related investor(s) below.
Name(s) of related investor(s):
______________________________________________
____________________________________________________________________________________________________________________________________________________________
2. Will
any other person or persons have a beneficial interest in the Purchased Shares
to be acquired hereunder (other than as a shareholder, partner, or other
beneficial owner of equity interest in the Investor)?
|
o Yes
|
o No
|
- 17
-
If either question above was answered
“Yes”, please contact ▇▇▇▇▇ ▇▇▇▇▇, Esq. at (▇▇▇) ▇▇▇-▇▇▇▇ or
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for additional information that will be
required.
The
Investor understands that the foregoing information will be relied upon by the
Company for the purpose of determining the eligibility of the Investor to
purchase the Purchased Shares. The Investor agrees to notify the Company
immediately if any representation or warranty contained in this Subscription
Agreement, including this Investor Questionnaire, becomes untrue at any time.
The Investor agrees to provide, if requested, any additional information that
may reasonably be required to substantiate the Investor’s status as an
accredited investor or to otherwise determine the eligibility of the Investor to
purchase the Purchased Shares. The Investor agrees to indemnify and hold
harmless the Company and each officer, director, shareholder, agent and
representative of the Company and their respective affiliates and successors and
assigns from and against any loss, damage or liability due to or arising out of
a breach of any representation, warranty or agreement of the Investor contained
herein.
|
INDIVIDUAL:
|
|
|
|
|
|
(Signature)
|
|
|
|
|
|
(Print
Name)
|
|
|
PARTNERSHIP,
CORPORATION, TRUST, CUSTODIAL ACCOUNT, OTHER:
|
|
|
|
|
|
(Name
of Entity)
|
|
|
By:
|
|
| (Signature) | |
| (Print Name and Title) | |
- 18
-
Annex
1
DEFINITION
OF “INVESTMENTS”
The term
“investments” means:
(1) Securities,
other than securities of an issuer that controls, is controlled by, or is under
common control with, the Investor that owns such securities, unless the issuer
of such securities is:
(i) An
investment company or a company that would be an investment company but for the
exclusions or exemptions provided by the Investment Company Act, or a commodity
pool; or
|
|
(ii)
|
a
Public Company (as defined below);
|
(iii) A
company with shareholders’ equity of not less than $50 million (determined in
accordance with generally accepted accounting principles) as reflected on the
company’s most recent financial statements, provided that such financial
statements present the information as of a date within 16 months preceding the
date on which the Investor acquires Purchased Shares;
(2) Real
estate held for investment purposes;
(3) Commodity
Shares (as defined below) held for investment purposes;
(4) Physical
Commodities (as defined below) held for investment purposes;
(5) To
the extent not securities, Financial Contracts (as defined below) entered into
for investment purposes;
(6) In
the case of an Investor that is a company that would be an investment company
but for the exclusions provided by Section 3(c)(1) or 3(c)(7) of the Investment
Company Act, or a commodity pool, any amounts payable to such Investor pursuant
to a firm agreement or similar binding commitment pursuant to which a person has
agreed to acquire an interest in, or make capital contributions to, the Investor
upon the demand of the Investor; and
(7) Cash
and cash equivalents held for investment purposes.
Real Estate that is used by the owner
or a Related Person (as defined below) of the owner for personal purposes, or as
a place of business, or in connection with the conduct of the trade or business
of such owner or a Related Person of the owner, will NOT be considered Real
Estate held for investment purposes, provided that real estate owned by an
Investor who is engaged primarily in the business of investing, trading or
developing real estate in connection with such business may be deemed to be held
for investment purposes. However, residential real estate will not be deemed to
be used for personal purposes if deductions with respect to such real estate are
not disallowed by section 280A of the Internal Revenue Code of 1986, as
amended.
A Commodity Interest or Physical
Commodity owned, or a Financial Contract entered into, by the Investor who is
engaged primarily in the business of investing, reinvesting, or trading in
Commodity Shares, Physical Commodities or Financial Contracts in connection with
such business may be deemed to be held for investment purposes.
- 19
-
“Commodity Shares” means commodity
futures contracts, options on commodity futures contracts, and options on
physical commodities traded on or subject to the rules of:
(i) Any
contract market designated for trading such transactions under the Commodity
Exchange Act and the rules thereunder; or
(ii) Any
board of trade or exchange outside the United States, as contemplated in Part 30
of the rules under the Commodity Exchange Act.
“Public Company” means a company
that:
(i) files
reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended; or
(ii) has
a class of securities that are listed on a Designated Offshore Securities
Market, as defined by Regulation S of the Securities Act.
“Financial Contract” means any
arrangement that:
(i) takes
the form of an individually negotiated contract, agreement, or option to buy,
sell, lend, swap, or repurchase, or other similar individually negotiated
transaction commonly entered into by participants in the financial
markets;
(ii) is
in respect of securities, commodities, currencies, interest or other rates,
other measures of value, or any other financial or economic interest similar in
purpose or function to any of the foregoing; and
(iii) is
entered into in response to a request from a counter party for a quotation, or
is otherwise entered into and structured to accommodate the objectives of the
counterparty to such arrangement.
“Physical Commodities” means any
physical commodity with respect to which a Commodity Interest is traded on a
market specified in the definition of Commodity Shares above.
“Related Person” means a person who is
related to the Investor as a sibling, spouse or former spouse, or is a direct
lineal descendant or ancestor by birth or adoption of the Investor, or is a
spouse of such descendant or ancestor, provided that, in the case of a Family
Company, a Related Person includes any owner of the Family Company and any
person who is a Related Person of such an owner. “Family Company” means a
company that is owned directly or indirectly by or for two or more natural
persons who are related as siblings or spouse (including former spouses), or
direct lineal descendants by birth or adoption, spouses of such persons, the
estates of such persons, or foundations, charitable organizations or trusts
established for the benefit of such persons.
- 20
-
For purposes of determining the amount
of investments owned by a company, there may be included investments owned by
majority-owned subsidiaries of the company and investments owned by a company
(“Parent Company”) of which the company is a majority-owned subsidiary, or by a
majority-owned subsidiary of the company and other majority-owned subsidiaries
of the Parent Company.
In determining whether a natural person
is a qualified purchaser, there may be included in the amount of such person’s
investments any investment held jointly with such person’s spouse, or
investments in which such person shares with such person’s spouse a community
property or similar shared ownership interest. In determining whether spouses
who are making a joint investment in the Partnership are qualified purchasers,
there may be included in the amount of each spouse’s investments any investments
owned by the other spouse (whether or not such investments are held jointly).
There shall be deducted from the amount of any such investments any amounts
specified by paragraph 2(a) of Annex 2 incurred by such spouse.
In determining whether a natural person
is a qualified purchaser, there may be included in the amount of such person’s
investments any investments held in an individual retirement account or similar
account the investments of which are directed by and held for the benefit of
such person.
- 21
-
Annex
2
VALUATIONS
OF INVESTMENTS
The general rule for determining the
value of investments in order to ascertain whether a person is a qualified
purchaser is that the value of the aggregate amount of investments owned and
invested on a discretionary basis by such person shall be their fair market
value on the most recent practicable date or their cost. This general rule is
subject to the following provisos:
(1) In
the case of Commodity Shares, the amount of investments shall be the value of
the initial margin or option premium deposited in connection with such Commodity
Shares; and
(2) In
each case, there shall be deducted from the amount of investments owned by such
person the following amounts:
(i) The
amount of any outstanding indebtedness incurred to acquire the investments owned
by such person.
(ii) A
Family Company, in addition to the amounts specified in paragraph (a) above,
shall have deducted from the value of such Family Company’s investments any
outstanding indebtedness incurred by an owner of the Family Company to acquire
such investments.
- 22
-