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Exhibit 10.20
WARRANT AGREEMENT
Agreement ("Agreement") effective as of ________, _____ between DOV
Pharmaceutical, Inc., a New Jersey corporation (the "COMPANY"), and
_______("HOLDER").
Whereas the Company has determined to issue Holder warrants to purchase
____ shares of the Company's common stock, par value $.0001 ("COMMON STOCK");
the Holder having earned such warrants as compensation for services rendered;
Now therefore the parties agree as follows:
1. GRANT. Holder is granted the right ("WARRANTS") to purchase up to an
aggregate of _____ shares of Common Stock at the exercise price of _____ per
share (the "EXERCISE PRICE") subject to adjustment as provided in section 7,
during the exercise period, which shall be the period commencing on _________
and ending at 5:30 p.m. local New York time on ________ (the "EXERCISE PERIOD").
2. WARRANT CERTIFICATE. The warrant certificate (the "WARRANT CERTIFICATE")
delivered pursuant to this Agreement shall be in the form set forth as EXHIBIT A
with such appropriate amendments as required or permitted hereby.
3. EXERCISE OF WARRANT. The Warrants are exercisable at the Exercise Price and
payable to the Company at its executive offices located at 433 Hackensack
Avenue, Hackensack, New Jersey 07601, attn: Chief Executive Officer (or such
other officer designated by the Company upon notice to the Holder) by:
(a) cash;
(b) certified check made payable to the order of the Company;
(c) wire transfer; or
(d) electing to receive shares equal to the value (as determined
below) of this Warrant by surrender of the Warrant Certificate at the
principal office of the Company, together with notice of such election
(the "CASHLESS EXERCISE"), in which event the Company shall issue to the
Holder, that number of shares of the Company's Common Stock computed using
the following formula:
X = Y(A-B)
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Where: X = the number of shares of Common Stock to be issued to the
Holder;
Y = the number of shares of Common Stock under the Warrant
Certificate;
A = the fair market value of one share of Common Stock; and
B = Exercise Price.
As used herein, current fair market value of Common Stock shall mean with
respect to each share of Common Stock the average of the closing prices of
the Company's Common Stock sold on all securities exchanges on which the
Common Stock may at the time be listed, or, if there have been no sales on
any such exchange on any day, the average of the highest bid and lowest
ask prices on all such exchanges at the end of such day, or, if on any day
the Common Stock is not so listed, the average of the representative bid
and asked prices quoted in the NASDAQ System as of 4:00 p.m., New York
City time, or, if on any day the Common Stock is not quoted in the NASDAQ
System, the average of the highest bid and lowest asked prices on such day
in the domestic over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or any similar successor organization, in
each case, averaged over a period of twenty-one (21) days consisting of
the day as of which the current fair market value of Common Stock is being
determined and the twenty (20) consecutive business days prior to such
day. If at any time the Common Stock is not listed on any securities
exchange or quoted in the NASDAQ System or the over-the-counter market,
the current fair market value of the Common Stock shall be the highest
price per share which the Company could obtain from a willing buyer (not a
current employee or director) for shares of Common Stock sold by the
Company, from authorized but unissued shares, as determined in good faith
by the Board of Directors of the Company.
4. ISSUANCE OF STOCK CERTIFICATES. Upon surrender of the Warrant Certificate,
submission of an executed Form of Election to Purchase in the form set forth as
EXHIBIT B, and payment of the Exercise Price (or election of the Cashless
Exercise), Holder shall be entitled to receive a certificate for the shares of
Common Stock so purchased underlying the Warrant Certificate, provided that, if
Holder purchases less than all the shares of Common Stock purchasable
thereunder, the Company shall cancel the Warrant Certificate upon the surrender
thereof and shall execute and deliver a new Warrant Certificate of like tenor
for the balance of the shares of Common Stock. The purchase rights represented
by the Warrant Certificate are exercisable at the option of Holder in whole or
in part, but not as to fractional shares of the Common Stock underlying the
Warrants or, unless the Company waives the requirement, in increments of less
than 5000 shares of Common Stock underlying the Warrants. Subject to this
Agreement, Holder shall be deemed the record holder of the shares of Common
Stock on the date of exercise of the Warrant, irrespective of the date of
delivery of the Common Stock certificate
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5. RESTRICTION ON TRANSFER OF WARRANTS. Holder may not sell, assign, pledge,
hypothecate or otherwise transfer any of its rights under this Agreement or the
Warrant Certificate without the prior written consent of the Company, such
consent to be given only upon the satisfaction of the following conditions: (i)
Holder must give the Company prior written notice of its intention to transfer,
such notice to include the name of the proposed transferee and a description of
the circumstances and manner of the proposed transfer; (ii) the transferee must
be an "accredited investor" as defined by Rule 501(a) of Regulation D under the
Securities Act of 1933, as amended (the "SECURITIES ACT") and such transferee
must complete and deliver to the Company an investor questionnaire in the form
attached hereto as EXHIBIT C; (iii) the Company, Holder, and transferee must
enter into a warrant transfer agreement in a form acceptable to the Company; and
(iv) if the Company deems necessary, the Holder shall deliver to the Company an
opinion of counsel that the proposed transfer may be effected without
registration under the Securities Act and applicable state securities laws.
6. REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(a) Neither the Warrants nor the shares of Common Stock issuable
upon exercise of the Warrants have been registered under the Securities
Act, or any applicable state securities or blue sky laws. Upon exercise of
the Warrants, the Company may cause a legend in substantially the form set
forth below to be placed on each certificate representing the shares of
Common Stock issued:
The securities represented by this certificate have not been
registered for public resale under the Securities Act of 1933, as
amended ("Securities Act"), and may not be offered, transferred or
sold except (i) pursuant to an effective registration statement
under the Securities Act and any applicable state securities or blue
sky laws, (ii) to the extent applicable, pursuant to Rule 144 under
the Securities Act (or any similar rule under the Securities Act
relating to the disposition of securities) together with an opinion
of counsel, if such opinion is reasonably satisfactory to issuer,
that such transfer is permitted or (iii) consistently with an
opinion of counsel, if such opinion is reasonably satisfactory to
issuer, that an exemption from registration under the Securities Act
and any applicable state securities or blue sky laws is available.
(b) If the Company decides to register any of its securities (either
for its own account or the account of a security holder or holders) on a
registration statement that would be suitable for registration of the
Common Stock underlying the Warrants, the Company shall (a) promptly give
Holder written notice thereof and (b) use reasonable efforts, including
subject to underwriter cutback and subject to
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Holder's cooperation in furnishing information required in connection with
registration and standard indemnification relating to such information or
omissions therefrom, to include such Common Stock in such registration
provided that the foregoing obligations shall not apply after the date on
which the Company furnishes to Holder an opinion of counsel, or the Holder
receives an opinion of counsel reasonably satisfactory to the Company,
that the shares underlying the Warrants may (subject to volume and manner
of sale restrictions) be sold by non-affiliates pursuant to Rule 144 under
the Securities Act.
7. ADJUSTMENTS TO EXERCISE AND NUMBER OF SECURITIES.
(a) In the event of any change in the Common Stock by reason of a
stock dividend, stock split, split up, recapitalization, combination,
exchange of shares or similar transaction of such character that the
shares of Common Stock are changed into or become exchangeable for a
larger or smaller number of shares, upon the effective date thereof the
number of shares of Common Stock that Holder is entitled to purchase upon
exercise of the Warrants shall be increased or decreased, as the case may
be, proportionate to the increase or decrease in the number of shares of
Common Stock resulting from such transaction, and the Exercise Price shall
be, in the case of an increase in the number of shares, proportionately
decreased and, in the case of a decrease in the number of shares,
proportionately increased.
(b) Upon a transfer or sale of all or substantially all the capital
stock or assets of the Company or upon a consolidation or merger of the
Company (other than a consolidation or merger that does not result in any
reclassification or change of the outstanding Common Stock), the
transferee, purchaser or entity formed by or surviving a consolidation or
merger, as the case may be, shall execute and deliver to Holder a
supplemental Agreement confirming that Holder shall have the right during
the Exercise Period to receive, upon exercise of the Warrants, the kind
and amount of shares of stock and other consideration if any receivable
upon such transfer, sale, consolidation or merger, as the case may be, by
a holder of the number of shares of Common Stock for which such Warrants
could have been exercised (without regard to the commencement of the
Exercise Period) immediately prior to such transfer, sale, consolidation
or merger. Such supplemental Agreement shall provide for adjustments that
shall be identical to the adjustments provided in this Section 7.
(c) No adjustment of the Exercise Price shall be made if the amount
of an adjustment is less than $0.05 per share of Common Stock provided
that any adjustment that would otherwise be required to be made shall be
carried forward and shall be made at the time of and together with the
next subsequent adjustment
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that, together with any such adjustment, amounts to at least $0.05 per
share of Common Stock.
(d) If the Company declares a dividend or dividends payable in
shares of Common Stock including any special dividend not distributed in
the ordinary course of business, Holder shall be entitled to receive upon
exercise of the Warrants, in addition to the number of shares of Common
Stock as to which the Warrant Certificate is exercised, such additional
shares of Common Stock as Holder would have received had the Warrants been
exercised immediately prior to the record date for the first such
dividend, and the Common Stock that would have been issuable thereupon
held until such actual exercise. If the Company declares a dividend or
dividends other than of Common Stock, Holder shall thereafter be entitled
to receive, in addition to the shares of Common Stock receivable upon the
exercise thereof, upon the exercise of such Warrants, such non-Common
Stock dividends as Holder would have received had the Warrants been
exercised immediately prior to the record date for the first such
dividend, and the Common Stock that would have been issuable thereupon if
held until such actual exercise.
(e) If, as a result of an adjustment made pursuant to this Section
7, Holder shall upon exercise of the Warrants become entitled to receive
securities or assets other than Common Stock, wherever appropriate all
references herein to shares of Common Stock shall be deemed to refer to
and include such other securities or assets and thereafter the number of
such other securities or assets shall be subject to adjustment from time
to time in a manner and upon terms as nearly equivalent as practicable to
those in this Section 7.
8. ISSUANCE OF NEW WARRANT CERTIFICATE. Upon receipt by the Company of evidence
reasonably satisfactory to it of a loss, theft, destruction or mutilation of a
Warrant Certificate, reimbursement by Holder to the Company of all incidental
expenses and, in the case of loss, theft or destruction, receipt of indemnity or
security from Holder reasonably satisfactory to it, or, in the case of
mutilation, upon surrender and cancellation of the mutilated Warrant Certificate
by Holder, the Company shall deliver a new Warrant Certificate to Holder of like
tenor in lieu thereof.
9. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to
issue certificates representing fractions of shares of Common Stock upon the
exercise of the Warrants. The Company shall have the option to make payment in
cash in respect of any fractional shares or to round any fraction up to the
nearest whole number of shares of Common Stock.
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10. RESERVATION AND LISTING OF SECURITIES. The Company shall at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the exercise of the Warrants, such number of
shares of Common Stock as shall be issuable upon the exercise thereof and
provide for their listing on any exchange where the Common Stock is listed.
11. REPRESENTATIONS AND WARRANTIES OF HOLDER.
(a) Holder represents and warrants to the Company that the Warrants
are being acquired solely for Holder's own account, for investment, not
for the interest of any other and are not being acquired with a view to or
for resale, distribution, assignment, subdivision or fractionalization
thereof, and that Holder has no present plans to enter into any contract,
undertaking, agreement or arrangement for such purpose.
(b) Holder understands that the Warrants and the Common Stock
underlying such Warrants have not been registered under the Securities Act
or under any state securities laws in reliance upon exemptions from the
registration and prospectus delivery requirements of the Securities Act
pursuant to Section 4(2) of the Securities Act and Regulation D thereunder
and in reliance upon certain exemptions from the registration requirements
of applicable state securities laws. The Company has no present intention
of registering the Warrants or the Common Stock underlying such Warrants.
Holder must therefore bear the economic risk of such investment
indefinitely, unless a subsequent disposition thereof is registered under
the Securities Act and applicable state securities law or is exempt from
registration. Holder further understands that the exemptions from
registration relied upon by the Company depend upon, among other things,
the bona fide nature of such Holder's investment intent expressed above
and the Holder's other representations herein.
(c) During the negotiation of the transactions contemplated herein,
Holder and Holder's representatives have been afforded an opportunity to
ask such questions of the Company's officers, employees, agents, counsel,
accountants and representatives concerning the Company's business,
operations, financial condition, assets, liabilities and other relevant
matters as they have deemed necessary or desirable, and have been given
all such documents and information as has been requested, in order to
evaluate the merits and risks of the prospective investments contemplated
herein.
(d) Holder and Holder's representatives have been solely responsible
for Holder's own "due diligence" investigation of the Company and its
management
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and business, for the Holder's own analysis of the merits and risks of
this investment, and for such Holder's own analysis of the fairness and
desirability of the terms of the investment. In taking any action or
performing any role relative to the arranging of the proposed investment,
Holder has acted solely in the Holder's own interest.
(e) Holder represents that it: (i) is an "accredited investor" as
defined in Rule 501(a) of Regulation D under the Securities Act; (ii) has
read and understands Rule 501(a) of Regulation D and has had an
opportunity to discuss Rule 501(a) of Regulation D with legal counsel;
(iii) has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of its prospective
investment in the Warrants and Common Stock underlying such Warrants; (iv)
has received all the information it has requested from the Company and
considers necessary or appropriate for deciding whether to purchase the
Warrants and Common Stock underlying such Warrants; (v) has the ability to
bear the economic risks inherent in such Holder's investment in the
Warrants and Common Stock underlying such Warrants; (vi) is able, without
materially impairing its financial condition, to hold the Warrants or
Common Stock underlying such Warrants for an indefinite period of time and
to suffer a complete loss of its investment; and (vii) understands and has
fully considered for purposes of this investment the risks of this
investment and understands that: (1) the Company is an enterprise with
limited financial and operating history, (2) the Warrants and Common Stock
underlying such Warrants represent an extremely speculative investment
which involves a high degree of risk of loss; (3) there are substantial
restrictions on the transferability of, and there is not currently and may
not be in the future any public market for the Warrants and Common Stock
underlying such Warrants, and, accordingly, it may not be possible for the
Purchaser to liquidate its investment in the Warrants or Common Stock
underlying such Warrants; and (4) there have been no representations as to
the possible future value, if any, of the Warrants or Common Stock
underlying such Warrants.
(f) Holder has the full right, power and authority to enter into and
perform the Holder's obligations under this Agreement, and this Agreement
constitutes the valid and binding obligation of such Holder enforceable
against such Holder in accordance with its terms except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws of general application relating to or affecting enforcement of
creditors' rights and rules or laws concerning equitable remedies.
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(g) No consent, approval or authorization of or designation,
declaration or filing with any governmental authority on the part of such
Holder is required in connection with the valid execution and delivery of
this Agreement.
12. NO VOTE BY OR STOCKHOLDER NOTICES TO WARRANT HOLDERS. Nothing contained in
this Agreement shall be construed as conferring upon Holder the right to vote,
consent or receive notice as a stockholder in respect of any meetings of
stockholders for the election of directors or any other matter, or as having any
rights whatsoever as a stockholder of the Company.
13. NOTICES. Any notice or demand pursuant to this Agreement shall be in writing
and shall be deemed sufficiently given or made (i) upon personal delivery; (ii)
the day following delivery to a reputable overnight courier or (iii) three days
following mailing by certified or registered mail, return receipt requested,
postage prepaid, and addressed, until the other party is notified of another
address, as follows:
If to the Company:
DOV Pharmaceutical, Inc.
433 Hackensack Avenue
Hackensack, New Jersey 07601
Attn: Arnold Lippa, Chief Executive Officer
With a copy to:
Goodwin, Procter, & Hoar LLP
599 Lexington Avenue, 40th Floor
New York, New York 10022
Attn: J. Robert Horton, Esq.
If to Holder:
_________________
_________________
_________________
_________________
14. SUPPLEMENTS AND AMENDMENTS. Except as otherwise expressly provided herein,
the provisions of this Agreement may be amended or waived at any time only by
the written agreement of the parties. Any waiver, permit, consent or approval of
kind or character on the part of each of Company or Holder of any provision of
this Agreement must be made in writing and shall be effective only to the extent
set forth in such writing.
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15. SUCCESSORS. This Agreement shall be binding upon and inure to the benefit of
the Company and Holder and their respective successors and permitted assigns
hereunder.
16. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) This Agreement and each Warrant Certificate issued hereunder
shall be deemed to be a contract made under the laws of Delaware and for
all purposes shall be construed in accordance with the laws thereof
without giving effect to its rules governing conflicts of laws.
(b) This Agreement and all controversies that may arise between
Holder and the Company hereunder shall be determined by arbitration
conducted in New York, New York. The arbitrator shall be selected by
agreement of the parties if such agreement can be reached within ten days
after notice by either party or, if it cannot, by such agreement from a
list of those arbitrators furnished to the Company by the American
Arbitration Association or, failing agreement within ten days after
receipt of such list, by selection of one of such arbitrators determined
by the flip of a coin. The parties stipulate or stipulate to their
understanding that
(i) in court, including the right to a jury trial;
(ii) pre-arbitration discovery is generally more limited than
and different from court proceedings; and arbitration is
final and binding on the parties;
(iii) the parties waive their right to seek remedies;
(iv) the arbitrator's award is not required to include
factual findings; or
(v) legal reasoning and each party's right to appeal or to
seek modifications or rulings by the arbitrators is
strictly limited.
Subject to the arbitrator's decision that more time for the hearing is required,
the hearing shall be concluded in one day, post-trial briefs shall be due within
ten days thereafter, briefs in answer or reply may be submitted only with the
arbitrator's permission and the award (with or without our opinion, as
determined by the arbitrator) shall be issued within ten days after submission
of final briefs.
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17. FUTURE AGREEMENT; MODIFICATION. This Agreement contains the entire
understanding between the parties with respect to the subject matter hereof and
may not be amended except in writing by the parties.
18. SEVERABILITY. If any provision of this Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision.
19. CAPTIONS. The caption headings of the sections of this Agreement are for
convenience of reference only and are not intended to be, nor may they be
construed as, a part of this Agreement and shall be given no substantive effect.
20. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be construed to
give to any person or entity other than the Company and Holder any legal or
equitable right, remedy or claim hereunder, and this Agreement shall be for the
sole and exclusive benefit of the Company and Holder.
21. COUNTERPARTS. This Agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and such counterparts shall together constitute but one document.
[END OF TEXT]
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In witness whereof the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
DOV Pharmaceutical, Inc.
By:
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Name:
Title:
Holder:
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WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), FOR PUBLIC RESALE AND MAY NOT BE
OFFERED, TRANSFERRED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES OR BLUE
SKY LAWS, (ii) RULE 144 UNDER THE SECURITIES ACT (OR ANY SIMILAR RULE UNDER THE
SECURITIES ACT RELATING TO THE DISPOSITION OF SECURITIES) TO THE EXTENT
APPLICABLE TOGETHER WITH AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO ISSUER
THAT SUCH TRANSFER IS PERMITTED OR (iii) AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO ISSUER THAT AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES OR BLUE SKY LAWS IS AVAILABLE.
THE EXERCISE, TRANSFER AND EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO A WARRANT AGREEMENT BETWEEN DOV PHARMACEUTICAL, INC.
AND _______ DATED AS OF ________________.
This Warrant Certificate certifies that __________ is the registered
holder of _______ Warrants to purchase, at any time from ________, until
_______, ____ at 5:30 p.m. local New York time (the "EXPIRATION DATE"), up to
______ fully-paid and non-assessable shares of common stock, par value $.0001
per share ("COMMON STOCK"), of DOV Pharmaceutical, Inc. (the "COMPANY"), at an
exercise price of $____ per share of Common Stock ("EXERCISE PRICE"), upon
surrender of this Warrant Certificate and payment of the Exercise Price to the
Company and subject to the Warrant Agreement dated as of _________, between the
Company and __________ (the "AGREEMENT").
At 5:31 p.m. local New York time on the Expiration Date all Warrants
evidenced hereby, unless exercised prior thereto, shall be void.
The Agreement is hereby incorporated by reference and made a part of this
Warrant Certificate and is hereby referred to for a description of the rights,
obligations, duties and restrictions of the Company and holder of the Warrants.
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In witness whereof the Company has caused this Warrant Certificate to be
duly executed as of this ____________.
DOV Pharmaceutical, Inc.
By:
------------------------------------
Name:
Title:
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EXHIBIT B
FORM OF ELECTION TO PURCHASE
(a) The undersigned irrevocably elects to exercise the right represented
by the attached Warrant Certificate to purchase ________ shares of common stock,
par value $.0001, of DOV Pharmaceutical, Inc., at an exercise price of $____ per
share and tenders in payment for such common stock (circle appropriate payment
method) (1) cash; (2) certified check; or (3) a wire transfer payable in New
York Clearing House Funds to the order of DOV Pharmaceutical, Inc., in the
amount of $_____________________.
(b) The undersigned irrevocably elects to exercise the right represented
by the attached Warrant Certificate to purchase pursuant to the Cashless
Exercise ________ shares of common stock, par value $.0001, of DOV
Pharmaceutical, Inc. at an exercise price of $____ per share and tenders in
payment for such common stock, this warrant certificate with a value of $_______
as calculated below:
Calculation of Value:
_______________________
________________________
________________________
By:_____________________________________
Name:
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EXHIBIT C
INVESTOR QUESTIONNAIRE
DOV PHARMACEUTICAL, INC.
433 HACKENSACK AVENUE
HACKENSACK, NJ 07601
ATTN: CHIEF EXECUTIVE OFFICER
To satisfy the requirements of Regulation D and applicable state law
exemptions, DOV Pharmaceutical, Inc. (the "Corporation") must determine whether
a prospective investor ("Investor") meets the Regulation D and state law
definitions of "accredited investor" before selling, or otherwise transferring
(or, in some states, offering) securities to such person. This Questionnaire is
designed to assist the Corporation in making this determination.
Please complete, execute and date this Prospective Investor Questionnaire
and deliver it to the address set forth above. Your answers will, at all times,
be kept confidential except as necessary to establish that the offering,
transfer and/or sale of the Shares will not result in a violation of the
registration provisions of the Securities Act or a violation of the securities
laws of any state.
1) To establish the basis of the Investor's status as an accredited investor,
please answer the questions set forth below.
a) Is the Investor an individual with a net worth (or net worth with
his or her spouse) in excess of $1 million:
Yes____ No____
b) Is the Investor an individual with net income (without including any
net income of the Investor's spouse) in excess of $200,000, or joint
income with the Investor's spouse, in excess of $300,000, in each of
the two most recent years, and does the Investor reasonably expect
to reach the same income level in the current year?
Yes____ No____
c) If the Investor is an individual, will his or her acquisition of
securities of the Corporation exceed 25% of the Investor's net worth
(or net worth with his or her spouse). For purposes of this Section
1(c), "net worth" excludes the value of the Investor's principal
residence.
Yes____ No____
d) Is the Investor an employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 (hereinafter
"ERISA") whose decision to invest in the Corporation is being made
by a plan fiduciary which is either a bank, savings and loan
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association, insurance company or registered investment adviser or,
alternatively, does the employee benefit plan have total assets in
excess of $5,000,000 or is the employee benefit plan "self-directed"
with investment decisions made solely by person(s) who answered
"Yes" to item 1(a) OR 1(b) above?
Yes____ No____
e) Is the Investor a retirement 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 with total assets in excess of $5,000,000?
Yes____ No____
f) Is the Investor a trust (including an individual retirement
arrangement formed as a trust or a tax-qualified pension and profit
sharing plan (E.G., a Keogh Plan) formed as a trust but not subject
to ERISA) with total assets in excess of $5,000,000 that was not
formed for the specific purpose of acquiring the Shares and whose
purchase is directed by a person with such knowledge and experience
in financial and business matters that such person is capable of
evaluating the merits and risks of the prospective investment?
Yes____ No____
g) Is the Investor a corporation, partnership, Massachusetts or similar
business trust or an organization described in Section 501(c)(3) of
the Internal Revenue Code that was not formed for the specific
purpose of acquiring the Shares and whose total assets exceed
$5,000,000?
Yes____ No____
h) Is the Investor one of the following entities:
(i) 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 an individual or fiduciary capacity;
(ii) A "broker/dealer" registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended;
(iii) An "insurance company," as defined in Section 2(13) of the
Securities Act;
(iv) An "investment company" registered under the Investment
Company Act of 1940 or a "business development company" as
defined in Section 2(a)(48) of the Investment Company Act of
1940;
(v) A "Small Business Investment Company" licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of
the Small Business Investment Act of 1958; or
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(vi) A "Private Business Development Company" as defined in Section
202(a)(22) of the Investment Advisers Act of 1940?
Yes____ No____
If yes, then which entity (I.E., (i) through (vi) above)?
__________________________
i) Is the Investor an entity (other than a trust but including a
grantor trust and including an investment retirement account, the
investment of which is directed by the beneficiary) in which all of
the equity owners can answer "Yes" to any one question set forth in
Sections 1(a) through 1(h) immediately above?
Yes____ No____
2) Is the Investor acquiring the Shares of the Corporation as a principal for
the purpose of investment and not with a view to resale or distribution?
Yes____ No____
3) By signing this Questionnaire, the Investor hereby confirms the following
statements:
a) The Investor is aware that the offering of the Shares will involve
securities for which no market exists, thereby possibly requiring an
investment to be held for an indefinite period of time.
b) The Investor shall immediately provide the Corporation with
corrected information in the event any information given herein was
untrue.
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c) The Investor acknowledges that any delivery to the Investor of any
information relating to the Corporation and the Shares, prior to the
determination by the Corporation of the suitability of the Investor as a
Stockholder shall not constitute an offer of Shares until such determination of
suitability shall be made.
d) The answers of the Investor to the foregoing questions are true and
complete to the best of the information and belief of the undersigned, and the
Corporation shall be notified promptly (and, in particular, upon the acquisition
of additional Shares by the Investor pursuant to any dividend reinvestment plan
or otherwise) of any changes in the foregoing answers.
By:_____________________________________
Name:
C-4