Exhibit 4.4
CATUITY, INC.
SUBSCRIPTION DOCUMENTS
THE SECURITIES COVERED BY THIS SUBSCRIPTION AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY OTHER STATE.
THIS OFFERING IS SUBJECT TO WITHDRAWAL, CANCELLATION OR MODIFICATION BY THE
COMPANY WITHOUT NOTICE. THE COMPANY RESERVES THE RIGHT, IN ITS SOLE DISCRETION,
TO REJECT ANY SUBSCRIPTION IN WHOLE OR IN PART FOR ANY REASON OR TO ALLOT TO ANY
SUBSCRIBER LESS THAN THE TOTAL COMMITMENT SUBSCRIBED FOR.
THIS OFFERING IS MADE, AND SALES OF INTERESTS WILL BE MADE, ONLY TO PURCHASERS
WHO QUALIFY AS "ACCREDITED INVESTORS" UNDER REGULATION D PROMULGATED UNDER THE
SECURITIES ACT OF 1933.
EACH OFFEREE MAY, IF THE OFFEREE SO DESIRES, MAKE INQUIRIES OF THE COMPANY WITH
RESPECT TO THE COMPANY'S BUSINESS OR ANY OTHER MATTERS RELATING TO THE COMPANY
AND ANY INVESTMENT IN THE SECURITIES THEREOF, AND MAY OBTAIN ANY ADDITIONAL
INFORMATION THAT SUCH PERSON DEEMS TO BE NECESSARY IN CONNECTION WITH MAKING AN
INVESTMENT DECISION IN ORDER TO VERIFY THE ACCURACY OF THE INFORMATION CONTAINED
IN THIS SUBSCRIPTION AGREEMENT (TO THE EXTENT THAT THE COMPANY POSSESSES SUCH
INFORMATION OR CAN ACQUIRE IT WITHOUT UNREASONABLE EFFORT OR EXPENSE). IN
CONNECTION WITH SUCH INQUIRY, ANY DOCUMENTS WHICH ANY OFFEREE WISHES TO REVIEW
WILL BE MADE AVAILABLE FOR INSPECTION AND COPYING OR PROVIDED, UPON
REQUEST, SUBJECT TO THE OFFEREE'S AGREEMENT TO MAINTAIN SUCH INFORMATION IN
CONFIDENCE AND TO RETURN THE SAME TO THE COMPANY IF THE RECIPIENT DOES NOT
PURCHASE THE SECURITIES OFFERED HEREUNDER. ANY SUCH INQUIRIES OR REQUESTS FOR
ADDITIONAL INFORMATION OR DOCUMENTS SHOULD BE MADE IN WRITING TO THE COMPANY
ADDRESSED AS FOLLOWS:
Catuity, Inc.
2711 E. Jefferson Avenue
Detroit, MI 48207
Attention: John Racine or Jack Lowry
NO PERSON OTHER THAN AS PROVIDED FOR HEREIN HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
SUBSCRIPTION AGREEMENT IN CONNECTION WITH THE OFFER BEING MADE HEREBY, AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED ON AS
HAVING BEEN AUTHORIZED BY THE COMPANY.
THIS SUBSCRIPTION AGREEMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES OFFERED
HEREBY, NOR DOES IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY SUCH SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO.
PROSPECTIVE INVESTORS ARE NOT TO CONSTRUE THE CONTENTS OF THIS SUBSCRIPTION
AGREEMENT AS LEGAL, INVESTMENT OR TAX ADVICE. PROSPECTIVE INVESTORS SHOULD
CONSULT THEIR ADVISORS AS TO LEGAL, INVESTMENT, TAX AND RELATED MATTERS
CONCERNING AN INVESTMENT BY SUCH PROSPECTIVE INVESTORS IN THE COMPANY.
THE STATEMENTS CONTAINED HEREIN ARE BASED ON INFORMATION BELIEVED BY THE COMPANY
TO BE RELIABLE. NO WARRANTY CAN BE MADE AS TO THE ACCURACY OF SUCH INFORMATION
OR THAT CIRCUMSTANCES HAVE NOT BEEN CHANGED SINCE THE DATE SUCH INFORMATION WAS
SUPPLIED. THIS SUBSCRIPTION DOCUMENT CONTAINS REFERENCES TO AND SUMMARIES OF
CERTAIN PROVISIONS OF DOCUMENTS RELATING TO THE PURCHASE OF SECURITIES. SUCH
REFERENCES AND SUMMARIES DO NOT PURPORT TO BE COMPLETE AND ARE QUALIFIED IN
THEIR ENTIRETY BY REFERENCE TO THE TEXT OF THE ORIGINAL DOCUMENTS WHICH ARE
EITHER INCLUDED HEREIN OR ARE AVAILABLE UPON REQUEST.
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SUBSCRIPTION INSTRUCTIONS
In connection with a subscription for shares of common stock being offered
by Catuity, Inc., a Delaware corporation (the "Company"), the following
documents should be properly and fully completed and signed:
1. SUBSCRIPTION AGREEMENT AND INVESTOR QUESTIONNAIRE. Please read this
document thoroughly. This must be completed and signed in accordance with the
instructions.
2. SUBSCRIPTION PRICE. Provide your check payable to the Company for the
aggregate subscription price. In lieu of a check, the funds may be wired based
on instructions that can be provided.
3. GOVERNING DOCUMENTS. If the subscriber is a corporation, limited
liability company, partnership or trust, please furnish a copy of the following:
Corporation: Articles (or Certificate) of Incorporation and Bylaws
Limited Liability
Company: Articles of Organization and Operating Agreement
Partnership: Certificate of Partnership and Partnership Agreement
Trust: Trust Agreement
4. DELIVERY INSTRUCTIONS AND QUESTIONS. Please return the completed and
signed subscription documents to:
Catuity, Inc.
2711 E. Jefferson Avenue
Detroit, MI 48207
Attention: John Racine or Jack Lowry
If you have any questions, please contact John Racine or Jack Lowry at
(313) 567-4348
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SUBSCRIPTION AGREEMENT AND INVESTOR QUESTIONNAIRE
1. DEFINITIONS. The following terms have the meanings indicated for
purposes of this Agreement:
The Company: Catuity, Inc.,
a Delaware corporation
The Subscription Agreement: This Subscription Agreement and Investor
Questionnaire
2. SUBSCRIPTION. The undersigned (the "Subscriber") hereby irrevocably
subscribes for and agrees to purchase that number of unregistered shares of the
Company's common stock (the "Shares") and to pay to the Company the purchase
price therefor set forth on the signature page hereof, upon the terms and
conditions described herein. The Subscriber acknowledges and agrees that the
purchase price for the Shares is due coincident with delivery of the
Subscription Documents. The date that the Company accepts this Subscription
Agreement and the Subscriber is issued Shares shall be referred to herein as the
"Closing Date."
3. ACCEPTANCE OR REJECTION OF SUBSCRIPTION. Subscriber understands and
agrees that the Company reserves the right to reject this subscription for
Shares, in whole or in part, at any time prior to the Closing Date for any
reason whatsoever. The Company shall promptly notify Subscriber of the
acceptance or rejection of Subscriber's subscription.
4. ADDITIONAL INFORMATION. The following information is required for
corporations, partnerships, limited liability companies and trusts: (Individual
Subscribers should proceed to Section 5)
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All entities:
Officers, managers, general partners or trustees (indicate status):
______________________________________________
______________________________________________
______________________________________________
(Indicate whether the following statement is true:)
The Subscriber was not organized for the specific purpose of acquiring the
Shares.
_____ True _____ False
(If the above statement is false, then each beneficial owner of an equity
interest in the subscribing entity must be an Accredited Investor. Attach a list
of all owners and indicate why each is an Accredited Investor by referring to
the subparagraphs of Section 5.)
Trusts only:
Type of trust: _____ Revocable _____ Irrevocable
If trust is revocable, name of grantor:
______________________________________________
5. ACCREDITED INVESTOR STATUS. Subscriber understands that, in order to
invest in the Company, the Subscriber must be an "Accredited Investor" within
the meaning of Regulation D promulgated under the Securities Act of 1933, as
amended ("Regulation D"). Subscriber hereby represents and warrants to the
Company that the Subscriber is an Accredited Investor because he, she or it
meets one or more of the requirements set forth below. (Please mark all items
which are applicable.)
Individual Subscribers
_____ The Subscriber has an individual net worth, or joint net worth with
his or her spouse, of more than $1,000,000.00.
_____ The Subscriber had individual income (not including his or her
spouse's income) in excess of $200,000.00 in each of the two most
recent years, or joint income
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with his or her spouse in excess of $300,000.00 in each of those
years, and has a reasonable expectation of reaching the same income
level in the current year.
Other Subscribers
_____ The Subscriber is a revocable grantor trust, and the grantor is an
Accredited Investor (i.e., meets one or more of the requirements set
forth above--Indicate which requirements).
_____ The Subscriber is a trust whose sole trustee is a bank or savings
and loan association as described in Regulation D.
_____ The Subscriber is a corporation, a limited liability company, a
partnership or other entity not formed for the specific purpose of
acquiring the Shares in the Company, with total assets in excess of
$5,000,000.00.
_____ The Subscriber is a trust not formed for the specific purpose of
acquiring the Shares in the Company, with total assets in excess of
$5,000,000.00, and the person making the investment decision has
such knowledge and experience in financial and business matters that
he is capable of evaluating the merits and risks of an investment in
the Company.
_____ The Subscriber is a bank as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended (the "Securities Act").
_____ The Subscriber is a savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the Securities Act.
_____ The Subscriber is a broker or dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934, as amended.
_____ The Subscriber is an insurance company as defined in Section 2(13)
of the Securities Act.
_____ The Subscriber is an investment company registered under the
Investment Fund Act of 1940, as amended, or a business development
company as defined in Section 2(a)(48) of the Securities Act.
_____ The Subscriber is an entity but does not meet either of the
qualifications set forth above; however, each owner of equity
interests in Subscriber qualifies as an Accredited Investor. Please
attach a list of all owners and indicate how each equity owner
qualifies as an Accredited Investor.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The Subscriber hereby
represents, warrants and agrees as follows, with the knowledge that the Company
will rely upon the same in deciding whether to accept this subscription:
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(a) The Subscriber acknowledges that all documents, records and books
pertaining to this investment have been made available for inspection by it and
its attorneys, accountants, investment advisors and other representatives. The
Subscriber and its advisors and representatives have had a reasonable
opportunity to ask questions of and receive answers from the officers of the
Company concerning the business, affairs and prospects of the Company, and all
such questions have been answered to the Subscriber's full satisfaction.
(b) The Shares were not offered for sale to the Subscriber by means of:
(i) an advertisement, article, notice, letter, circular or other communication
published in any newspaper, magazine or similar medium or by other written
communication or broadcast over television or radio; or (ii) a seminar or
meeting held pursuant to public invitation or announcement; or (iii) any other
form of general solicitation or advertising.
(c) All information contained in this Subscription Agreement and all other
information which the Subscriber has provided to the Company is correct and
complete as of the date set forth on the signature page hereof, and, if there
should be any material change in such information before this subscription is
accepted, the Subscriber will immediately provide the Company with such
information.
(d) The Subscriber, if an individual, is a citizen of the United States of
America, and is at least 21 years of age.
(e) If the Subscriber is an entity, (i) the Subscriber is duly organized,
validly existing and in good standing under all laws applicable to it and has
full power and authority to acquire the Shares in the Company, and (ii) those
persons executing this Subscription Agreement on the Subscriber's behalf are
duly authorized to act for and bind the Subscriber.
(f) The Subscriber and its stockholders, members, partners or
beneficiaries (if any) have adequate means of providing for their current needs
and possible personal contingencies, have no need for liquidity in this
investment, are able to bear the substantial economic risks of an investment in
the Company for an indefinite period, and at the present time could afford a
complete loss of the investment. The Subscriber has such knowledge and
experience in financial and business matters that the Subscriber is capable of
evaluating the merits and risks of this investment. Upon acceptance of this
subscription, the Subscriber will have invested less than ten percent (10%) of
its total assets into the Company.
(g) The Subscriber recognizes that there is substantial economic risk
associated with an investment in the Company, which could result in a complete
loss of investment. The Subscriber has carefully read and understands the Risk
Factors and other information disclosed in the Company's public filings with the
U.S. Securities and Exchange Commission.
(h) The Subscriber understands, or has consulted with its tax advisors
concerning, the tax consequences of an investment in the Company. The Subscriber
has not received or relied upon any representations, warranties or assurances of
the Company or any persons acting on its behalf concerning the tax aspects of an
investment in the Company.
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(i) The Subscriber understands that the Shares have not been registered
under the Securities Act of 1933, as amended, or the Michigan Uniform Securities
Act, or the securities laws of any other state. The Subscriber will not sell or
otherwise transfer any Shares unless they are registered under the Securities
Act of 1933, as amended, and any applicable state securities laws, or an
exemption from such registration is available. The Subscriber further
understands that the Company is under no obligation to register the Shares on
its behalf or to assist it in complying with any exemption from registration.
The Subscriber is purchasing the Shares solely for its own account for
investment only and not for the account of any other person and not for
distribution, assignment or resale to others, and no other person has a direct
or indirect beneficial interest in the Shares.
(j) If the Subscriber is a revocable trust, the undersigned grantor hereby
guarantees to the Company the full and prompt performance by such trust of all
its obligations to the Company
7. INDEMNIFICATION. The Subscriber hereby agrees to indemnify the Company
and its directors, officers, employees, agents, their respective affiliates and
anyone acting on their behalf against all liability, damages, loss, costs and
expenses (including reasonable attorneys' fees and expenses) which any of them
may incur by reason of the Subscriber's failure to fulfill any of the
agreements, terms or conditions of this Subscription Agreement, or by reason of
the falsity of any representation or breach of any warranty made by the
Subscriber herein or in connection with the Operating Agreement, or in any
document provided by the Subscriber to the Company.
8. MISCELLANEOUS.
(a) The Subscriber agrees that upon acceptance of this Subscription
Agreement by the Company, the Subscriber's execution and delivery of this
Subscription Agreement is irrevocable and the Subscriber may not terminate or
revoke the same or any agreement made by the Subscriber hereunder, and that the
same shall survive the death or disability of the Subscriber and shall be
binding upon the Subscriber's heirs, executors, administrators, successors and
assigns; provided, however, that if the Subscriber is not satisfied with the
terms of the Operating Agreement or the offering memorandum describing the
investment in the Company, when such documents are finalized, the Subscriber may
withdraw, and the Company shall refund to the Subscriber, his, her or its
investment. The Subscriber agrees that, although after acceptance the Company
will return to the Subscriber a copy of this Subscription Agreement, the
acceptance of this Subscription Agreement will be effective when an officer of
the Company signs the appropriate form below without delivery or notice of such
acceptance.
(b) This Subscription Agreement constitutes 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, except as otherwise provided herein.
(c) This Subscription Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of Delaware.
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9. SECURITIES LAWS PROVISION. The Subscriber has read, understands and
agrees to be bound by the following:
THE SECURITIES SUBSCRIBED FOR HEREIN HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") OR ANY OTHER STATE
SECURITIES AGENCY, NOR HAS THE COMMISSION OR ANY OTHER STATE SECURITIES AGENCY
PASSED UPON THE ACCURACY OR ADEQUACY OF THE OFFERING DOCUMENTS. SUCH INTERESTS
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS
OF ANY OTHER STATE AND ARE SUBJECT TO RESTRICTION ON TRANSFERABILITY AND SALE OF
SECURITIES AS SET FORTH IN THIS SUBSCRIPTION AGREEMENT. THE SUBSCRIBER AGREES
THAT SUCH INTERESTS WILL NOT BE SOLD WITHOUT REGISTRATION UNDER ALL APPLICABLE
SECURITIES LAWS OR EXEMPTION THEREFROM.
[Signatures to follow on next page]
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SUBSCRIBER SIGNATURE
IN WITNESS WHEROF, the undersigned Subscriber hereby executes and delivers
this Subscription Agreement and Investor Questionnaire as of the date written
below.
Dated: _______, 2005 ______________________________
Print Name of Subscriber
By: __________________________
(Signature)
Title: _______________________
(if applicable)
Legal Residence of Subscriber: ______________________________________________
______________________________________________
Mailing Address of Subscriber: ______________________________________________
(if different from above) ______________________________________________
Telephone Number of Subscriber: ______________________________________________
E-Mail Address of Subscriber: ______________________________________________
Taxpayer Identification or Social
Security Number of Subscriber: ______________________________________________
Total Capital Commitment: $_________________(Minimum is $100,000
subject to the discretion of the Company to
accept lesser amounts)
Share price: US$7.50 per share
SUBSCRIPTION ACCEPTED:
Dated: 2005 Catuity Inc., a Delaware corporation
By: ________________________________
Its: _______________________________
#1097438 v1 - Form Subscription Agreement
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