EXHIBIT 10.23
EMPIRE FINANCIAL HOLDING COMPANY
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT, dated as of the date set forth on the
signature page hereof, is entered into by and between EMPIRE FINANCIAL HOLDING
COMPANY, a Florida corporation (the "Company"), and the SUBSCRIBER specified on
the signature page hereof (the "Subscriber" and, collectively with other
subscribers executing a copy of this Agreement, the "Subscribers").
WHEREAS, the Company is offering, pursuant to an Offering Memorandum,
dated as of November 18, 2003 (the "Memorandum"), up to a maximum of $2,000,000
of principal amount of Convertible Unsecured Non-Negotiable Notes due 2006
(each, a "Note" and collectively, the "Notes") at a price equal to the principal
amount of the Notes; there is no minimum subscription per Subscriber; and
WHEREAS, the Subscriber wishes to subscribe for the principal amount of
Notes specified on the signature page hereof on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereby agree as follows:
ARTICLE I
SUBSCRIPTION FOR NOTES
1.1 SUBSCRIPTION. Subject to the terms and conditions hereof, the Subscriber
hereby applies to become a holder of the Notes, and subscribes for and agrees to
purchase the principal amount of the Notes specified on the signature page
hereof at a price equal to the principal amount of the Notes in accordance with
the terms of this Agreement. The aggregate purchase price for such Notes is
hereinafter referred to as the "Subscription Amount."
1.2 ACCEPTANCE OR REJECTION OF SUBSCRIPTION. This Agreement shall not become
effective against the Company until executed by it and delivered to the
Subscriber by an authorized representative of the Company. Prior to such
execution, the Company may reject the Subscriber's subscription in whole or in
part, for any reason, in its sole and absolute discretion.
1.3 SUBSCRIPTION PERIOD. The initial closing of the subscription period shall
occur at the sole discretion of the Company and is currently scheduled to occur
no later than December 15, 2003, unless earlier terminated or extended by the
Company in its sole discretion. The initial closing shall occur at the sole
discretion of the Company. After the initial closing, if the maximum principal
amount of the Notes have not been sold, the Company has the option to sell such
remaining principal amount of the Notes at closings to occur from time to time.
1.4 GROSS PROCEEDS. At any time after December 31, 2003, each subscriber whose
subscriptions have not been fully and completely accepted shall be entitled to
request and receive from the Company a refund of their paid, but unused
Subscription Amount.
1.5 SEGREGATED ESCROW ACCOUNT. All funds paid hereunder shall be deposited by
the Company in a segregated non-interest bearing escrow account to be
established for the benefit of the Subscribers. The Company has the right, in
its absolute discretion, to reject, in whole or part and in any order, any
subscriptions deposited in the escrow account at any time prior to the issuance
of the Notes. In such event, the Subscription Amount, without interest, will be
promptly returned to such Subscriber.
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ARTICLE II
REPRESENTATIONS OF THE COMPANY
2.1 REPRESENTATIONS. The Company hereby represents, warrants and agrees as
follows:
(a) ORGANIZATION. The Company is duly organized, validly existing and
in good standing under the laws of the State of Florida.
(b) POWER AND AUTHORITY. The Company has the requisite corporate power
and authority to execute and deliver this Subscription Agreement. The execution
and delivery of this Subscription Agreement has been duly approved by the board
of directors of the Company and no other corporate proceedings on the part of
the Company are necessary for the due authorization hereof. This Subscription
Agreement has been duly executed and delivered by the Company and constitutes a
valid and binding obligation of the Company, enforceable against it in
accordance with its terms.
(c) NO CONFLICTS. The execution and delivery of this Subscription
Agreement by the Company, the consummation of the transactions contemplated
hereby and compliance with the terms hereof does not and will not conflict with,
or result in any violation, breach of or default by the Company under, or
require approval or consent under, or give rise to a right of termination of any
obligation or result in the creation of any encumbrance of any kind upon any of
the Company's assets under, any provision of (i) the Certificate of
Incorporation or By-Laws of the Company or (ii) any note, lease, license,
contract, commitment or loan or other agreement to which the Company is a party
or by which any of its properties or assets are bound.
(d) ISSUANCE OF NOTES. Upon issuance of the Notes and payment of the
Subscription Amount therefor, such Notes shall be duly authorized and validly
issued.
ARTICLE III
REPRESENTATIONS OF THE SUBSCRIBER; INDEMNIFICATION
3.1 REPRESENTATIONS. The Subscriber represents, warrants and agrees as follows:
(a) POWER AND AUTHORITY. If the Subscriber is an entity, (i) the
Subscriber is authorized to (A) enter into this Agreement and the Registration
Rights Agreement, (B) perform its obligations under this Agreement and the
Registration Rights Agreement and (C) consummate the transactions that are
subject to this Agreement and the Registration Rights Agreement; (ii) the person
signing this Agreement and the Registration Rights Agreement on behalf of the
Subscriber has been duly authorized to execute and deliver this Agreement and
the Registration
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Rights Agreement and all other instruments executed and delivered on behalf of
the Subscriber in connection with the purchase of the Notes; (iii) the signature
of the person signing this Agreement and the Registration Rights Agreement is
binding upon the Subscriber; and (iv) the Subscriber was not organized for the
purpose of entering into this Agreement in order to acquire Notes. If the
Subscriber is an individual, the Subscriber is at least 21 years of age and has
the capacity to execute and deliver this Agreement and the Registration Rights
Agreement.
(b) COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS. The execution and
delivery of this Agreement and the Registration Rights Agreement and the
consummation of the transactions contemplated hereby and thereby will not
conflict with, or result in any violation of or default under, any provision of
any charter, by-laws, trust agreement, partnership agreement or other
organizational document applicable to the Subscriber or any agreement or other
instrument to which the Subscriber is a party or by which the Subscriber or any
of his, her or its properties are bound, or any permit, franchise, judgment,
decree, statute, rule or regulation applicable to the Subscriber or any of his,
her or its business or properties.
(c) UNITED STATES PERSON. The Subscriber is a "United States Person",
as defined in Section 7701(a)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"), because the Subscriber is either (i) a citizen or resident
of the United States of America, (ii) a domestic partnership, or (iii) a
domestic corporation. If the Subscriber is not a U.S. Person, the Subscriber
will deliver the appropriate IRS Form W-8 to the Company together with this
Subscription Agreement.
(d) NATURAL PERSON ACCREDITED INVESTOR. If the Subscriber is an
individual, such Subscriber acknowledges that he or she is an "Accredited
Investor", as that term is defined in Rule 501 of Regulation D promulgated under
the Securities Act of 1933, as amended (the "Securities Act"). Please read and
review the following questions as they pertain to the Subscriber and check TRUE
or FALSE for each question:
|_| |_| (1) The Subscriber is a natural person whose net
True False worth, either individually or jointly with
such Subscriber's spouse, exceeds
$1,000,000.
|_| |_| (2) The Subscriber is a natural person who had
True False an individual income in excess of $200,000,
or joint income with such Subscriber's
spouse in excess of $300,000, in 2001 and
2002 and reasonably expects such income to
reach the same level in 2003.
The term "net worth" means the excess of total assets over total
liabilities. In calculating "net worth", the Subscriber may include the
estimated fair market value of the Subscriber's principal residence as an asset.
In determining individual "income", the Subscriber should (i) add to
the Subscriber's individual adjusted gross income (exclusive of any spousal
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 an ▇▇▇ or ▇▇▇▇▇ retirement plan to the extent
vested, alimony payments, and any amount by which income from long-term capital
gains has
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been reduced in arriving at adjusted gross income and (ii) subtract from the
Subscriber's individual adjusted gross income any unrealized capital gain.
(e) NON-NATURAL PERSON ACCREDITED INVESTOR. If the Subscriber is a
corporation, partnership, trust, pension plan, foundation, joint purchaser
(other than a married couple), or other entity, an authorized officer, partner,
or trustee must answer the following indicating the basis upon which the
Subscriber is an Accredited Investor. Please read and review the following
questions as they pertain to the Subscriber and check TRUE or FALSE for each
question:
|_| |_| (1) The Subscriber is a bank as defined in
True False 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.
|_| |_| (2) The Subscriber is a broker or dealer
True False registered under Section 15 of the
Securities Exchange Act of 1934, as amended.
|_| |_| (3) The Subscriber is an insurance company as
True False defined in Section 2(a)(13) of the
Securities Act.
|_| |_| (4) The Subscriber is an investment company
True False registered under the Investment Company Act
of 1940 or a business development company as
defined in Section 2(a)(48) of that Act.
|_| |_| (5) The Subscriber is a Small Business
True False Investment Company licensed by the U.S.
Small Business Administration under Section
301(c) or (d) of the Small Business
Investment Act of 1958.
|_| |_| (6) The Subscriber is a plan established and
True False 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 such plan has total assets in
excess of $5,000,000.
|_| |_| (7) The Subscriber is an employee benefit plan
True False within the meaning of the Employment
Retirement Income Security Act of 1974, if
the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of
such act, which is either a bank, savings
and loan association, insurance company, or
registered investment adviser, or if the
employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed
plan, with investment decisions made solely
by persons that are Accredited Investors.
|_| |_| (8) The Subscriber is a private business
True False development company as defined in Section
202(a)(22) of the Investment Advisors Act of
1940.
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|_| |_| (9) The Subscriber is a Company, partnership or
True False organization described in Section 501(c)(3)
of the Internal Revenue Code, or
Massachusetts or similar business trust, not
formed for the specific purpose of acquiring
the Notes, with total assets in excess of
$5,000,000.
|_| |_| (10) The Subscriber is a trust, with total assets
True False in excess of $5,000,000, not formed for the
specific purpose of acquiring the Notes,
whose purchase is directed by a
sophisticated person who had such knowledge
and experience in financial and business
matters that such person is capable of
evaluating the merits and risks of investing
in the Company.
|_| |_| (11) The Subscriber is an entity in which all of
True False the equity owners are accredited investors.
If the Subscriber belongs to this investor
category only, list the equity owners of the
Subscriber, and the investor category which
each such equity owner satisfies:
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
(Continue on a separate piece of paper, if necessary.)
(f) ACCESS. The Subscriber has received the Company's Offering
Memorandum (the "Memorandum") and has carefully reviewed it, including the
Registration Rights Agreement attached thereto. The Subscriber has also received
the Company's public filings made with the Securities and Exchange Commission
since January 1, 2003 (the " Public Filings") and has carefully reviewed the
Public Filings. The Subscriber will rely solely on the information contained in
the Memorandum, the Public Filings and the independent investigations made by
the Subscriber and/or the Subscriber's advisors (the "Advisor(s)") and is not
relying upon any oral representations in making the decision to purchase the
Notes subscribed for herein. The Subscriber acknowledges that all documents,
records and books pertaining to this investment have been made available for
inspection by the Subscriber and/or such Advisor(s). The Subscriber and/or such
Advisor(s) have had a reasonable opportunity to ask questions of, and receive
answers from, proper representatives of the Company concerning the terms and
conditions of this offering of Notes and all such questions have been answered
to the full satisfaction of the Subscriber. No oral representations have been
made or oral information furnished to the Subscriber or such Advisor(s) in
connection with the offering of the Notes which were in any way inconsistent
with the Memorandum or the Public Filings.
(g) SALES LITERATURE. The Subscriber is purchasing the Notes without
being furnished any offering or sales literature or prospectus other than the
Memorandum and the Public Filings.
(h) INVESTMENT INTENT. The Notes are being purchased solely for the
Subscriber's own account for investment and not for the account of any other
person and not for, or with a view towards, distribution, assignment or resale
to others in the United States or
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elsewhere and, upon the Subscriber's purchase, no other person shall have a
direct or indirect beneficiary interest in the Notes.
(i) NO REGISTRATION. The Subscriber acknowledges and understands that
neither the Notes nor the securities into which the Note is convertible have
been registered under the Securities Act or under the securities or "blue sky"
laws of any state in reliance upon exemptions for non-public offerings and that
the neither the Notes nor the securities into which the Note is convertible may
be sold, pledged, or transferred unless registered under the Securities Act and
such applicable state laws or an exemption from such registration is or becomes
available. The Subscriber further acknowledges and understands that the Company
is under no obligation to register the Notes on behalf of the Subscriber or to
assist the Subscriber in obtaining any exemption from registration and that the
Company is only obligated to register the securities into which the Note is
convertible to the limited extent set forth in the Registration Rights
Agreement.
(j) ECONOMIC LOSS AND SOPHISTICATION. The Subscriber (i) has adequate
means of providing for the Subscriber's current needs and possible personal
contingencies, (ii) has no need for liquidity in the investment, (iii) is able
to bear the substantial economic risk of an investment in the Notes, including a
complete loss of such investment, and (iv) does not have an overall commitment
to investments which are not readily marketable that is disproportionate to the
Subscriber's net worth, and the Subscriber's investment in the Notes will not
cause such overall commitment to become disproportionate to such net worth.
(k) RISKS. The Subscriber recognizes that the an investment in the
Notes involves significant risks, including those set forth under the caption
"Factors Affecting our Operating, Business Prospects and Market Price of Stock"
in the Company's Annual Report on Form 10-K for the year ended December 31,
2002. The Subscriber further recognizes that (i) an investment in the Company is
highly speculative, (ii) transferability of the Notes is prohibited and (iii)
the Subscriber could sustain a loss of such Subscriber's entire investment in
the Notes.
(l) NO REVIEW OF MEMORANDUM NOR PUBLIC FILINGS. The Subscriber
recognizes that neither the Memorandum nor the Public Filings have been reviewed
by the Securities and Exchange Commission or any state securities regulatory
authority.
(m) NO MARKET FOR NOTES. The Subscriber realizes there is no public
market for the Notes, nor is one expected to develop, wherein the Subscriber may
sell or dispose of the Notes. In addition, the Subscriber understands that the
right to transfer the Notes are limited as provided in the Note.
(n) CORRECT INFORMATION. All information that the Subscriber has
provided to the Company, including all information contained herein, is correct
and compete as of the date set forth on the signature page hereof. The
Subscriber will immediately notify the Company if there is any change in such
information prior to the acceptance of the Subscriber's subscription in the
Company.
(o) TAX CONSEQUENCE. The Subscriber understands that the discussions of
the tax consequences arising from an investment in the Company as set forth in
the Memorandum
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are general in nature and that the tax consequences to the Subscriber of an
investment in the Company depends on the Subscriber's individual circumstances.
The Subscriber has obtained, from the Subscriber's Advisor(s) or otherwise, any
tax advice deemed appropriate by the Subscriber.
(p) NO PROMISE OF EMPLOYMENT BY COMPANY. The Subscriber understands and
acknowledges that the Subscriber's subscription for any purchase of the Notes
shall in no way be construed as granting the Subscriber any right to employment
by the Company or any of its subsidiaries or affiliates.
(q) NOT FORMED FOR INVESTING. If the Subscriber is an entity, such
entity has not been formed for the purpose of investing in the Company.
(r) NO FEE. No broker or other person is entitled to any commission or
finder's fee in connection with the transaction contemplated by this
Subscription Agreement. The Subscriber has no claims with respect to any other
issuance of securities by the Company. The Subscriber did not become aware of
the offering of the Notes through any form of general solicitation or
advertising.
(s) PRINCIPAL PLACE OF BUSINESS OR RESIDENCE. The address set forth on
the signature page hereof is the Subscriber's true and correct principal place
of business or if the Subscriber is an individual is the Subscriber's true and
correct residence.
(t) ADVISORS. Each Subscriber relying upon Advisor(s) has provided the
Company with written acknowledgment as to the identity of such persons, together
with a copy of any agreement retaining such Advisor(s).
3.2 INDEMNIFICATION. The Subscriber acknowledges that the Company intends to
rely on the representations and warranties made by the Subscriber in Article III
of this Subscription Agreement as the basis, in part, for its determination that
a sale of the Notes can be made to the Subscriber without registration under the
Securities Act and applicable state securities laws. The Subscriber agrees to
indemnify the Company and its directors, officers, representatives, affiliates
and agents, and hold each of them harmless, from and against any and all loss,
damage, liability, or expense, including reasonable attorneys' fees, which they
or any of them may sustain or incur by reason of any material misrepresentation
or omission or any breach of warranty or agreement by the Subscriber under this
Subscription Agreement and any other instruments executed by the Subscriber in
connection with his purchase of the Notes pursuant hereto or by reason of the
sale or distribution by the Subscriber of the Notes in violation of the
Securities Act or of any applicable state securities laws.
3.3 REGISTRATION RIGHTS AGREEMENT. The Subscriber hereby agrees to adopt, enter
into and be bound by all the terms and provisions of the Registration Rights
Agreement and to perform all obligations therein imposed upon a Holder (as
defined in the Registration Rights Agreement). Upon execution of this
Subscription Agreement by the Subscriber, the Subscriber shall concurrently
execute the signature page to the Registration Rights Agreement attached hereto
as page S-3.
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ARTICLE IV
REPRESENTATIONS OF SUBSCRIBERS
4.1 NOTICE TO AND REPRESENTATIONS OF SUBSCRIBERS. The Subscriber represents and
acknowledges as follows:
NEITHER THE NOTES NOR THE SECURITIES INTO WHICH THE NOTES ARE
CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND
ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE NOTE AND THE
SECURITIES INTO WHICH THE NOTES ARE CONVERTIBLE ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT PURSUANT TO REGISTRATION UNDER SAID SECURITIES ACT AND
SUCH APPLICABLE STATE LAWS OR EXEMPTION THEREFROM.
NEITHER THE NOTES NOR THE SECURITIES INTO WHICH THE NOTES ARE
CONVERTIBLE HAVE BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER
REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED
UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR
ADEQUACY OF THIS SUBSCRIPTION AGREEMENT. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
ARTICLE V
MISCELLANEOUS
5.1 NOTICES. Notices hereunder shall be in writing and shall be deemed received
when mailed by certified mail, return receipt requested, or delivered against
receipt to the Company at the address set forth above, or to the Subscriber at
the address of such Subscriber as recorded in the records of the Company, or to
such other address as the Subscriber provides by notice hereunder.
5.2 CONFIDENTIAL INFORMATION. The Subscriber acknowledges and agrees that all
information received from or about the Company which is not in the public domain
was received in confidence. The Subscriber agrees not to disclose such
confidential information to third parties or use such confidential information
for any purpose other than evaluating an investment in the Notes and
acknowledges that any such disclosure may violate applicable federal and state
securities laws.
5.3 ASSIGNMENT. This subscription is not transferable or assignable by the
Subscriber.
5.4 ENTIRE AGREEMENT. This Subscription Agreement, together with the agreements,
instruments and other documents referred to herein and therein, constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and may be amended only by a writing executed by all parties hereto; and
there are no representations, covenants or other agreements have been made
relating thereto, except as stated or referred to herein.
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5.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to the
principles of conflicts of laws thereof.
5.6 ARBITRATION. All disputes arising in connection with this Agreement, other
than claims for which the Employer seeks injunctive relief or other equitable
performance, shall be finally settled under the Commercial Arbitration Rules of
the American Arbitration Association (the "Rules") by one arbitrator appointed
in accordance with such Rules. Any arbitral award shall be binding on the
parties hereto and enforceable in any court having competent jurisdiction. The
place of arbitration shall be Miami, Florida and the arbitrator shall have the
right to award actual damages and attorneys' fees and costs, but shall not have
the right to award punitive, special, exemplary or consequential damages against
any party. The language of the arbitration shall be English. Any arbitral award
resulting from such proceeding or settlement in connection therewith shall be
held in strict confidence by the parties hereto unless the disclosure of such
award or settlement is required by law.
5.7 ADDITIONAL INFORMATION. Promptly after receipt of a written request from the
Company, the Subscriber agrees to provide such information and to execute and
deliver such other documents as may be reasonably requested by the Company.
5.8 SURVIVAL. The representations and warranties of the Subscriber set forth
herein shall survive the purchase and sale of the Notes pursuant to this
Subscription Agreement.
5.9 COUNTERPARTS. This Subscription Agreement may be executed through the use of
separate signature pages or in any number of counterparts, 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. This Subscription Agreement may be executed and delivered by
facsimile, followed by delivery of the originally executed copy.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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EMPIRE FINANCIAL HOLDING COMPANY
SUBSCRIPTION AGREEMENT
SIGNATURE PAGE FOR SUBSCRIBERS WHO ARE NATURAL PERSONS
The subscriber hereby elects to subscribe for __________ of principal
amount of the Notes of Empire Financial Holding Company at a purchase price
equal to the principal amount of the Notes.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this ___ day of _______________, 2003.
_______________________________ ______________________________
Signature of individual Signature of spouse
_______________________________ ______________________________
Print name of individual Print name of spouse
_______________________________ ______________________________
(Social Security Number) (Social Security Number)
_______________________________ ______________________________
Place of Residence Place of Residence
(___)__________________________ (___)_________________________
Telephone Number Telephone Number
SUBSCRIPTION ACCEPTED:
EMPIRE FINANCIAL HOLDING COMPANY
By: _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇.
President
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EMPIRE FINANCIAL HOLDING COMPANY
SUBSCRIPTION AGREEMENT
SIGNATURE PAGE FOR SUBSCRIBERS WHO ARE NOT NATURAL PERSONS
The subscriber hereby elects to subscribe for __________ of principal
amount of the Notes of Empire Financial Holding Company at a purchase price
equal to the principal amount of the Notes.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this ___ day of ____________, 2003.
________________________________________ ______________________________
Print legal name of Company, Tax Identification Number of
partnership, trust, foundation or Company, Partnership, Trust,
other entity Foundation or Other Entity)
By: ____________________________________
Signature of authorized signatory
_______________________________________
Print name of authorized signatory
_______________________________________
Title/Capacity of authorized signatory
_______________________________________
Principal Place of Business
SUBSCRIPTION ACCEPTED:
EMPIRE FINANCIAL HOLDING COMPANY
By: _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇.
President
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