EXHIBIT 4.5
FORM OF
WASTE SYSTEMS INTERNATIONAL, INC.
EXCHANGE AGREEMENT
To: Waste Systems International, Inc.
420 Bedford Street
Suite 300
Lexington, MA 02173
Re: 7% SUBORDINATED NOTES DUE MAY 13, 2005
Reference is made to the 7% Subordinated Notes due May 13, 2005 (the
"Notes") issued by Waste Systems International, Inc., a Delaware corporation
(the "Company"), in the aggregate principal amount of $60,000,000. You have
advised the undersigned that the Company has offered to certain accredited
investors who are holders of Notes (whether in the form of a definitive Note or
through a beneficial interest in a global Note), to exchange such Notes for
shares (the "Common Shares") of Common Stock, $.01 par value per share of the
Company (the "Common Stock"), at an exchange price per Common Share equal to
$[___] (the "Exchange Price"), for consideration payable in principal amount of
Notes, to a holder exchanging Notes for Common Shares (an "Investor") pursuant
to the terms and conditions described herein and in the Confidential Private
Exchange Offering Memorandum dated January [ ], 1999 and accompanying this
Agreement (the "Exchange Offering Memorandum" which, together with this
Agreement, constitute the "Exchange Offer"). The Exchange Offer will remain open
from the date of the Exchange Offering Memorandum until [ ], unless extended by
the Company (such date, as extended, if at all, the "Expiration Date").
Capitalized terms used but not defined herein shall have the respective meanings
ascribed to them in the Exchange Offering Memorandum.
Based on the foregoing and subject to the terms and conditions of this
Exchange Agreement (the "Exchange Subscription"), the undersigned agrees with
you as follows:
1. EXCHANGE SUBSCRIPTION.
Pursuant to the terms of the Exchange Offer, the undersigned hereby
subscribes for up to the number of Common Shares set forth on the signature page
hereof (at the caption "Subscription Request") and tenders in exchange therefor
this Exchange Subscription and Notes in the principal amount set forth on the
signature page hereof (at the caption "Notes Tendered"). The undersigned
acknowledges that the sum of such principal amount of Notes so tendered divided
by the Exchange Price, will determine the maximum number of Common
Shares for which the undersigned may request subscription pursuant to the terms
of the Exchange Offer. If the undersigned's interest in the Notes is in the form
of a beneficial interest in a global Note held by a depositary, the undersigned
has also executed an acknowledgment in the space provided for "Global Notes" to
indicate the undersigned's written instructions to the depositary. Such written
instructions request that the depositary transfer the indicated beneficial
interest in such global Note to the Company upon receipt of the Company's
written acceptance of such Exchange Subscription. Both the tendering of
definitive Notes and the executed acknowledgment of written depositary
instructions with respect to transferring beneficial interests in a global Note
to the Company, as described above, are referred to and considered in this
Exchange Agreement as the "tendering of Notes." In lieu of any fractional Common
Shares, which will not be issued in the Exchange Offer, the Company will pay the
undersigned at the applicable Closing (as defined below) cash in an amount equal
to the amount of consideration described in clause (a) above remaining after
determining the integral number of Common Shares issuable to such Investor in
the manner described above.
Any unpaid interest on Notes tendered and accepted pursuant to the Exchange
Offer which has accrued to the initial Interim Closing Date (as defined below),
calculated on a pro rata basis for that period regardless of which Closing Date
(as defined below) actually applies to such Notes (the "Pro Rata Interest"),
will be paid in cash or stock (valued at the Exchange Price) at the Company's
option, on the applicable Closing Date (such payment in either form, the "Final
Interest Payment"). Any unpaid interest on Notes tendered and accepted pursuant
to the Exchange Offer which has accrued from the initial Interim Closing Date to
any applicable Closing Date thereafter will not be paid and will be forfeited.
2. ACCEPTANCE OF EXCHANGE SUBSCRIPTION.
It is understood and agreed that this Exchange Subscription is made subject
to the following terms and conditions:
(a) The Company shall have the right to accept or reject this Exchange
Subscription, in whole or in part, for any reason, including the allocation of
Common Shares pursuant to the terms of the Exchange Offer described in the
Exchange Offering Memorandum, the inability of the undersigned to meet the
standards imposed by Regulation D promulgated by the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
the ineligibility of the undersigned to meet the standards imposed by applicable
state or foreign securities laws, or for any other reason, or for no reason. If
this Exchange Subscription is rejected in whole or in part, the Notes tendered
pursuant to Section 1 hereof and rejected by the Company will be returned to the
address set forth on the signature page by the undersigned together with
interest, if any, accrued thereon and payable between the date of such tender
and the date such Notes are returned to the undersigned. Upon such return of
Notes (and payment of interest as described in the preceding sentence, if any),
the undersigned will have no further liability to the Company with respect to
the Notes tendered
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and rejected for this Exchange Subscription other than to return to the Company
the Exchange Offering Memorandum and other documents, if any, furnished to the
undersigned by or on behalf of the Company in connection with the Exchange
Offer, and the Company will have no further liability to the undersigned arising
from the Exchange Offer with respect to the Notes tendered and rejected for
Exchange. Accordingly, if Notes are tendered by the undersigned and returned by
the Company during any period in which there is no interest payment date arising
under the Notes, the Company will have no liability to the undersigned arising
from the Exchange Offer with respect to the Notes tendered and rejected for this
Exchange Subscription other than the return of such Notes (or the return of the
executed acknowledgment of written instructions to a depository relating to the
transfer of a beneficial interest in a global Note, if applicable) to the
undersigned as described in this paragraph, and the undersigned will continue to
be entitled to receive interest payments on such Notes under the terms thereof.
(b) The terms and conditions on which the Company will accept or
reject Exchange Subscriptions, in whole or in part, are set forth in the
Exchange Offer Memorandum under the section titled, "The Exchange Offer," the
text of which is incorporated by reference as if fully set forth herein.
(c) Two copies of this Agreement are being executed by the
undersigned. If accepted, one copy of this Agreement will be retained by the
Company and one copy of this Agreement, after execution by the Company, shall be
delivered to the undersigned.
3. CLOSING OF EXCHANGE OFFER; WITHDRAWAL OF EXCHANGE OFFER OR EXCHANGE
SUBSCRIPTION.
(a) The Company shall consummate the Exchange Offer and the Exchange
Agreement at the offices of the Company in a series of one or more closings held
(as determined by the Company) as tenders of Notes in accordance with the terms
of the Exchange Offer are received from time to time during the period beginning
the date hereof and ending on or prior to the Expiration Date (each an "Interim
Closing" held on an "Interim Closing Date"); the Company shall complete the
consummation of the Exchange Offer and the Exchange Agreement at the offices of
the Company in a final closing held on or about [ ], 1998, but in any event not
later than five business days after the Expiration Date (the "Final Closing"
held on the "Final Closing Date"; the Final Closing and each Interim Closing are
each referred to as a "Closing").
(b) At each Interim Closing, the Company may accept Notes tendered by
any Investor in accordance with the terms of the Exchange Offer in exchange for
delivery of the certificates representing not more than such Investor's
Allocable Number of Shares, payment of cash in lieu of fractional Common Shares
otherwise issuable, if any, and the Final Interest Payment (in cash or Common
Shares as determined by the Company) on such Notes tendered and accepted
pursuant to the Exchange Offer. At the Final Closing, any Oversubscribed Amounts
shall be allocated among Oversubscribing Investors based on the
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relative percentage of all Notes outstanding immediately prior to the date
hereof held by all Oversubscribing Investors, until the respective
Oversubscribed Amounts have been satisfied or the aggregate Undersubscribed
Amount has been completely allocated among the Oversubscribing Investors.
Affiliated Investors may allocate among themselves the affiliated group's
aggregate Allocable Number of Shares and any Oversubscribed Amount (and the
related Final Interest Payment) allocated in accordance with subscription
procedures described above. For purposes of the Exchange Offer, Investors will
be considered "Affiliated Investors" if one such Investor, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the other such Investor.
(c) All Notes tendered to the Company (and all executed
acknowledgments of written instructions received by the Company regarding the
transfer of beneficial interests in a global Note) pursuant to the Exchange
Offer shall be held unexchanged by the Company until the applicable Closing
Date, at which time the Company shall either (i) accept any Note tendered hereby
and issue Common Shares and deliver cash in lieu of fractional Common Shares
(which will not be issued), if any, together with the Final Interest Payment (in
cash or Common Shares as determined by the Company) on Notes tendered and
accepted pursuant to the Exchange Offer, to the tendering Investor; (ii) hold
any Note tendered hereby which represents an Oversubscribed Amount until
allocation of Oversubscribed Amounts can be determined on the Final Closing Date
and such Note is accepted as described in clause (i) or rejected as described in
clause (iii); or (iii) reject any Note tendered hereby and return it to the
tendering Investor, together with interest, if any, accrued thereon and payable
between the date of such tender and the date such Notes are returned (such
interest being paid to the depositary with respect to holders of a beneficial
interest in a global Note), in each case pursuant to the terms and conditions of
the Exchange Offer.
(d) Notwithstanding the foregoing: (i) the Company may extend the
Expiration Date and, prior to the initial Interim Closing Date, may modify or
withdraw the Exchange Offer, in each case pursuant to a Modification Notice (as
defined in Section 3(e) below) and in compliance with federal securities laws;
and (ii) to the extent that any holder of Notes is required to file a notice
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), the applicable Closing only with respect to such Investor shall be
conditioned upon the filing of such notice and the expiration or termination of
the required waiting period with respect to such notice, if applicable, under
the HSR Act; provided that upon satisfaction of such condition, the Notes
exchanged by such Investor shall be deemed to have been retired as of the Final
Closing Date for all purposes related to such Notes.
(e) The Company reserves the right to reject, in whole or in part, any
Exchange Subscription in its sole discretion for any reason whatsoever, and to
modify or withdraw this Exchange Offer at any time on or prior to the initial
Interim Closing Date for any reason or for no reason. In the event the Company
materially modifies any term of the Exchange Offer, each Investor will receive
notice of such modification (a "Modification Notice") and, in compliance with
federal securities laws, the Expiration Date will be extended
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to the extent necessary to keep the Exchange Offer open for ten business days
from the date of delivery of such Modification Notice. If the Exchange Offer is
withdrawn by the Company, the Company shall promptly return to the holders any
and all Notes (and all executed acknowledgments of written instructions received
by the Company regarding the transfer of beneficial interests in a global Note)
previously tendered to the Company hereunder, and the Company will have no
further liability to the undersigned arising from the Exchange Offer upon its
return to the undersigned of such Notes together with interest, if any, accrued
on Notes tendered in definitive form and payable between the date of such tender
and the date such Notes are returned to the undersigned (such interest being
paid to the depositary with respect to holders of a beneficial interest in a
global Note).
4. REPRESENTATIONS AND WARRANTIES OF THE UNDERSIGNED.
The undersigned hereby represents and warrants to the Company as
follows:
(a) all information provided and representations made by the
undersigned in the Prospective Investor Questionnaire (the "Questionnaire") of
the Company, a form of which Questionnaire is attached hereto as EXHIBIT A, are
true and correct in all respects as of the date hereof.
(b) The address set forth at the foot of this Subscription is the
address of the undersigned's principal residence or place of business, and the
undersigned has no present intention of becoming a resident of any other
country, state or jurisdiction.
(c) Unless the undersigned shall have notified the Company to the
contrary in writing prior to or together with the tendering of this Exchange
Subscription, the undersigned acknowledges that the undersigned has not relied
upon the advice of a "Purchaser Representative" (as defined in the
aforementioned Regulation D) in evaluating the risks and merits of this
investment.
(d) The undersigned has received and read or reviewed and is familiar
with the Exchange Offering Memorandum and its Exhibits, and the undersigned
confirms that all documents, records, and books pertaining to the investment in
the Company and requested by the undersigned have been made available or
delivered to the undersigned.
(e) The undersigned has had an opportunity to ask questions of and
receive answers from the Company, or a person or persons acting on the Company's
behalf, concerning the terms and conditions of this investment.
(f) The undersigned understands and acknowledges the following:
(i) the securities for which the undersigned hereby subscribes in
this Exchange Offer (including any securities into which such securities
may be converted)
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have not been registered under the Securities Act or under the securities
laws of any state or other jurisdiction in reliance upon exemptions for
private offerings, and that this Exchange Offer has not been passed upon or
the merits thereof endorsed or approved by any state or federal
authorities;
(ii) while the Company may in the future register such securities
(or any securities into which such securities may be converted), it is
under no obligation to do so, except as provided herein;
(iii) such securities (including any securities into which such
securities may be converted) cannot be resold unless registered under the
Securities Act and any applicable securities law of any state or other
jurisdiction, or an exemption from registration is available;
(iv) there can be no assurance that any public market for such
securities (including any securities into which such securities may be
converted) which may currently exist will continue to exist in the future;
(v) the undersigned is purchasing such securities without being
furnished any offering literature or prospectus other than the Exchange
Offering Memorandum (and the exhibits thereto), and is relying only on the
information contained therein in evaluating the risks and merits of this
investment; and
(vi) no person or entity has been authorized to give any
information or make any representations in connection with this investment
other than that contained in the Exchange Offering Memorandum (and the
exhibits thereto).
(g) The securities for which the undersigned hereby subscribes
pursuant to the Exchange Offer are being acquired solely for the undersigned's
own account, for investment and not with a view to or for the resale,
distribution, subdivision, or fractionalization thereof; the undersigned has no
present plans to enter into any contract, undertaking, agreement, or arrangement
relating thereto.
(h) The undersigned has such knowledge and experience that the
undersigned is capable of evaluating the matters set forth in the Exchange
Offering Memorandum (and the exhibits thereto) and the risks and merits relating
thereto.
(i) The undersigned acknowledges and is aware of the following:
(i) the securities offered hereby are a speculative
investment which involves a high degree of risk of loss by the
undersigned of the undersigned's entire investment in the Company; and
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(ii) no assurances have been given that the undersigned will
realize any gain from the undersigned's exchange of Notes for Common
Shares pursuant to the Exchange Offer and the undersigned may lose the
undersigned's entire investment in the Common Shares.
(j) The undersigned, if it is a corporation or other entity,
acknowledges that it, through the officer(s) and/or director(s) and/or other
employees responsible for making an investment decision with regard to this
Exchange Subscription, has such knowledge and experience in financial and
business matters that it is capable of evaluating the relative risks and merits
of this investment, and further acknowledges that the representations and
warranties contained in this Section 4 are true and accurate with respect to it.
The foregoing representations and warranties are true and accurate as
of the date hereof and shall be true and accurate as of the date of acceptance
of this Exchange Subscription and delivery of the securities purchased hereunder
and shall survive such delivery.
5. TRANSFERABILITY.
This Exchange Subscription, or any of the undersigned's interest
herein, may not be transferred or assigned, and any sale, assignment or transfer
of the securities acquired pursuant to the Exchange hereunder shall be made only
in accordance with applicable securities laws.
6. REVOCATION.
The undersigned agrees that the undersigned shall not cancel,
terminate or revoke this Exchange Subscription or any agreement of the
undersigned made hereunder except as may be required by applicable law, and that
this Exchange Subscription shall survive the death or disability of the
undersigned.
7. REGISTRATION RIGHTS.
The Company hereby grants the following rights with respect to the Common
Shares to be issued to the undersigned in connection with this Exchange
Subscription:
(a) "S-3" REGISTRATIONS. The Company shall use its best efforts
to continue to qualify at all times for registration of its capital stock on a
Registration Statement on Form S-3 under the Securities Act ("Form S-3") or a
comparable successor form, and to file within 90 days from the Closing Date a
registration statement on Form S-3 (or on such other form as the Company is then
eligible to use under the Securities Act) for the registration of all Common
Shares issued pursuant to the Exchange Offer ("Registrable Securities"). The
Company shall take such steps as are required to register such Registrable
Securities for sale on a delayed or continuous basis under Rule 415, and to keep
such registration effective until
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all of such holder's Registrable Securities registered thereunder are sold.
Notwithstanding the foregoing:
(i) the Company shall have no obligation to keep any
registration effective more than 120 days after the
initial date of effectiveness of such registration; and
(ii) the Company may postpone the filing of any registration
statement required hereunder for a reasonable period of
time, not to exceed 90 days, if the Company determines in
good faith that such filing would require the disclosure
of a material transaction or other factor and the Company
determines reasonably and in good faith that such
disclosure would have a material adverse effect on the
Company.
The obligations of the Company under this Section 7 shall expire and
terminate at such time as the holder of Registrable Securities shall be entitled
to sell such securities without restriction and without a need for the filing of
a registration statement under the Securities Act, including without limitation,
for any resales of restricted securities made pursuant to Rule 144 as
promulgated by the Securities and Exchange Commission.
(b) EXPENSES. In the case of a registration under this Section 7, the
Company shall bear all costs and expenses of each such registration, including,
but not limited to, printing, legal and accounting expenses; PROVIDED, HOWEVER,
that the Company shall have no obligation to pay or otherwise bear any portion
of the underwriters' commissions or discounts attributable to the Registrable
Securities being offered and sold by the holders of Registrable Securities or
the fees and expenses of any counsel for the selling holders of Registrable
Securities in connection with the registration of the Registrable Securities.
8. MISCELLANEOUS.
(a) NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part of
any party to this Exchange Subscription, in exercising any right, power or
remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy
hereunder. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
(b) ADDRESSES FOR NOTICES, ETC. All notices requests, demands and
other communications provided for hereunder shall be in writing and mailed,
telecommunicated or delivered:
If to the Company, to the address set forth above, Telecopier: (781)
862-2929, Attention: Chief Financial Officer, or at such other address as shall
be designated by the
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Company in a written notice to the undersigned complying as to delivery with the
terms of this Section 8. A copy of all notices, demands and other communications
to the Company shall be sent to the offices of Goodwin, Procter & Hoar LLP,
Exchange Place, Boston, Massachusetts 02109, Attention: Thomas P. Storer, P.C.,
Telecopier: (617) 523-1231.
If to the undersigned, at its address as set forth on the signature page
hereof or at such other address as shall be designated by the undersigned in a
written notice to the Company complying as to delivery with the terms of this
Section 8.
All such notices, requests, demands and other communications shall, when
mailed, registered or certified mail, return receipt requested, postage prepaid,
telecommunicated, telegraphed or telexed, respectively, be effective when
deposited in the mails, confirmed received by telecommunication or delivered to
the telegraph or telex company, respectively, addressed as aforesaid.
(c) SEVERABILITY. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision.
(d) GOVERNING LAW. This Exchange Subscription shall be governed by,
and construed in accordance with, the laws of The Commonwealth of Massachusetts,
without regard to the choice of law principles thereunder.
(e) ENTIRE AGREEMENT; AMENDMENTS. This Exchange Agreement together
with all Exhibits and amendments hereto constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and may only be
amended by a writing executed by all parties.
(f) CERTIFICATION. The undersigned certifies that he has read the
entire Exchange Agreement and every statement on his part and set forth herein
is true and complete.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned has executed and sworn to this
Exchange Subscription this ______ day of ____________, 1999.
- ------------------------- --------------------------------
Signature of Co-Investor Signature of Co-Investor, if any
- -------------------------------------------------------------------------------
Name of Investor (Please print) and Capacity in Which Exchange Subscription
is Made
Address of Investor:
-----------------------------------------------------------
Number Street City State Zip Code
Tel. No. ( )
------------------- --------------------------------------
Social Security Number for Individual
or other Taxpayer Identification Number
SUBSCRIPTION REQUEST#: _______________ shares of Common Stock at the Exchange
Price.
# Note: Affiliated Investors wishing to allocate among themselves the
affiliated group's aggregate Allocable Number of Shares and any
Oversubscribed Amount allocated in accordance with the Exchange Offer
subscription procedures should so indicate on a separate sheet attached to
this Signature Page.
NOTES TENDERED*: $_______________ Principal Amount of Notes tendered in the
Exchange Offer.
*GLOBAL NOTES: TO BE COMPLETED ONLY BY INVESTORS WHO ARE TENDERING BENEFICIAL
INTERESTS IN A GLOBAL NOTE. THIS DOES NOT APPLY TO INVESTORS TENDERING
DEFINITIVE NOTE DOCUMENTS WITH THIS AGREEMENT.
WRITTEN INSTRUCTIONS TO THE DEPOSITARY OF THE GLOBAL NOTES
The undersigned hereby instructs the depositary of the 7%
Subordinated Notes due May 13, 2005 of Waste Systems International,
Inc. to tender for transfer pursuant to the terms and conditions of
this Exchange Subscription that portion of the undersigned's beneficial
interest in a global Note held by the depositary represented by the
principal amount set forth in the paragraph "NOTES*:" above.
- --------------------------- ---------------------------------
Signature of Investor Signature of Co-Investor, if any
ACCEPTED BY WASTE SYSTEMS INTERNATIONAL, INC., this ____ day of ______________,
1999:
By:
---------------------------
Name:
Title:
COMMON
SHARES: [_____] Common Shares issued, comprised of: (i) [_____] Common
Shares in exchange for the Notes tendered in the principal amount
set forth above at the Exchange Price; and (ii) [___] Common
Shares in lieu of cash for the Final Interest Payment of $[_____]
in Pro Rata Interest on such Notes accepted for exchange.
CASH: [$_____] total cash, comprised of: (i) $[_____] in cash, if any,
in lieu of [___] fractional Common Shares otherwise issuable in
exchange for the Notes tendered and accepted for exchange; and
(ii) [$___] in cash for Pro Rata Interest on such Notes accepted
for exchange.
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EXHIBIT A
NAME OF INVESTOR:
-----------------------------------
PROSPECTIVE INVESTOR QUESTIONNAIRE
Waste Systems International, Inc.
420 Bedford Street
Suite 300
Lexington, MA 02173
The securities of Waste Systems International, Inc. (the "Company")
offered by the Company through the Exchange Offer of which the Exchange Offering
Memorandum is a part, are being offered in reliance on Regulation D under the
Securities Act of 1933, as amended ("Regulation D"), and similar provisions of
state law. To satisfy the requirements of Regulation D and applicable state law,
the Company must determine whether a prospective investor (the "Investor") meets
Regulation D and the state law definitions of "accredited investor" before
selling (or, in some states, offering) securities to such person. This
Questionnaire is designed to assist the Company in making this determination.
Please complete, execute and date this Prospective Investor
Questionnaire and deliver it along with an executed Exchange Agreement to the
Company at the address set forth above. Your answers will, at all times, be kept
confidential except as necessary to establish that the offer and sale of the
securities will not result in a violation of applicable law.
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) If the Investor is an individual, will his or her acquisition of
securities of the Company in the offering exceed 25% of the
Investor's net worth (or net worth with his or her spouse). For
purposes of this Section 1(b), "net worth" excludes the value of
the Investor's principal residence and its furnishings.
Yes___ No___
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c) 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___
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 Company is being made by
a plan fiduciary which is either a bank, savings and loan
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 are accredited investors(s)?
Yes___ No___
e) Is the Investor 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 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 Keough 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
securities of the Company 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___
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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 securities of the Company 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;
(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
(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., (h)(i) through (vi)
above)?
----------------
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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 or the
beneficiary, as the case may be, 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 securities of the Company 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 shall immediately provide the Company with corrected
information in the event any information given herein was untrue.
b) The Investor acknowledges that any delivery to the Investor of a
Confidential Private Exchange Offering Memorandum and other
information relating to the Company, prior to the determination
by the Company of the suitability of the Investor as an investor
in the Company, shall not constitute an offer of securities of
the Company until such determination of suitability shall be
made.
c) 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 Company shall be notified promptly of
any changes in the foregoing answers.
[Remainder of Page Intentionally Left Blank]
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- -------------------------- --------------------------
Signature of Investor Signature of Investor
(or duly authorized agent) (or duly authorized agent)
- -------------------------- --------------------------
Title: Title:
- -------------------------- --------------------------
Print Name Signed Above Print Name Signed Above
- -------------------------- --------------------------
Date Signed Date Signed
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