Exhibit 4.1
SMARTIRE SYSTEMS, INC.
(A Yukon Territory corporation)
- --------------------------------------------------------------------------------
SUBSCRIPTION DOCUMENTS
- --------------------------------------------------------------------------------
Name of Subscriber: ______________________
Subscriber Number: _______________________
INSTRUCTIONS TO SUBSCRIBERS
Persons wishing to subscribe for a 5% Secured Convertible Debenture
(the "Debenture") from SmarTire Systems, Inc., a Yukon Territory corporation
(the "Company), are required to complete the documents in this package. In the
event that the shareholders of the Company do not approve and increase it
authorized shares capital at the Company's Annual General Meeting that will take
place on December 10, 2004, the Company has committed to redeem the Convertible
Debenture plus a 5% penalty within 90 days from the date of the Convertible
Debenture.
Please comply with the following instructions:
1. Please complete and sign the Subscription Agreement and Accredited
Investor Suitability Questionnaire provided to you. In those cases in which the
securities will be held in joint ownership, all parties must sign.
2. Your check or wire transfer in the amount of the investment should
be made payable to the Escrow Agent as follows: Clark, Wilson, as escrow agent
for SmarTire Systems, Inc." All wire transfers should be sent to the Escrow
Agent in accordance with the wire transfer instructions attached hereto as
Exhibit "A."
SPECIAL SUBSCRIPTION INSTRUCTIONS AND CERTIFICATE
FOR CORPORATION, PARTNERSHIP AND TRUST SUBSCRIBERS
If the Subscriber is a corporation, partnership, trust or other entity,
the following additional instructions must be followed. Information additional
to that requested below may also be required in some cases.
1. Corporations, partnerships and trusts must have the Subscription
Agreement completed and executed by the authorized corporate officer, general
partner or trustee who is making the investment decision on behalf of the
corporation, partnership or trust.
2. Corporations, partnerships and trusts must provide the following
information:
(a) Corporations must attach a copy of their currently
effective Articles of Incorporation.
(b) Partnerships must attach a copy of their currently
effective partnership agreement, including the date of formation and a list of
all the partners.
(c) Trusts must attach a copy of their currently effective
trust instrument authorizing investments by trustee.
The authorized corporate officer, general partner or trustee must
complete, date, and sign the Certificate set forth on page 9 hereof.
1
SUBSCRIPTION AGREEMENT
Name(s) of Subscriber(s): Total Subscription Price:
--------------------------
-------------------------- $-----------------
Gentlemen:
1. SUBSCRIPTION. The undersigned (the "Subscriber"), intending to be
legally bound, hereby irrevocably subscribes for and agrees to purchase from
SmarTire Systems, Inc., a Yukon Territory corporation (the "Corporation"), a 5%
Secured Convertible Debenture (the "Debenture") in the principal amount set
forth above in accordance with the terms of this Subscription Agreement (the
"Subscription Agreement").
2. SUBSCRIPTION INSTRUMENTS. The Subscriber hereby tenders the
following materials (the "Subscription Materials"), all of which have been duly
completed and executed by the Subscriber:
a. A check or wire transfer, in the amount of the total
subscription price, made payable to SICHENZIA ROSS FRIEDMAN FERENCE LLP as
escrow agent for SmarTire Systems, Inc." All wire transfers should be sent to
SICHENZIA ROSS FRIEDMAN FERENCE LLP in accordance with the wire transfer
instructions attached hereto as Exhibit "A.";
b. One copy of this Subscription Agreement; and
c. One copy of the Accredited Investor Suitability
Questionnaire.
3. ACCEPTANCE OR REJECTION OF SUBSCRIPTION. The Subscriber understands
and agrees that:
a. The Corporation in its sole discretion reserves the right
to accept or reject this or any other subscription, in whole or in part, and in
any order.
b. If this subscription is accepted, the proceeds delivered
herewith shall be used to admit the subscribers whose subscriptions were
accepted by the Corporation;
c. If this subscription is rejected, the Subscription
Documents and the subscription funds will be promptly returned to the
Subscriber. No interest will be paid on any subscription funds; and
d. Upon acceptance of this Subscription Agreement and
execution by the Corporation of a Debenture for the Subscriber, Clark, Wilson,
as escrow agent to the Corporation, is irrevocably instructed and authorized to
deliver all the subscription funds to the Corporation.
4. REPRESENTATIONS AND WARRANTIES. The Subscriber hereby represents and
warrants to the Corporation as follows:
a. The Subscriber understands the business in which the
Corporation will be engaged and 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 Corporation and making an informed investment decision with
respect thereto. He has obtained sufficient information to evaluate the merits
and risks of the investment and to make such a decision. The Subscriber
acknowledges that he has received and read a copy of the Confidential Summary
Private Offering Memorandum (the "Memorandum") dated October ___, 2004, along
with all exhibits thereto and has had an opportunity to review the Memorandum
with his advisors;
2
b. The Subscriber and his attorneys, investment advisors,
business advisors, tax advisors and accountants have had sufficient access to
all documents and records pertaining to the Corporation and this proposed
investment in the securities. Additionally, the Subscriber and all of his
advisors have had the opportunity to ask questions and receive answers
concerning the terms and conditions of the offering and other matters pertaining
to this investment, and all such questions have been answered to the
satisfaction of the Subscriber. The Subscriber and all of his advisors have had
an opportunity to obtain any additional information which the Corporation
possesses, or can acquire without unreasonable effort or expense, necessary to
verify the accuracy of the information furnished to the Subscriber, if any;
c. The Subscriber (i) has adequate means of providing for his
current needs and possible personal contingencies and those of his family, if
applicable, in the same manner as he would have been able to provide prior to
making the investment in the securities, (ii) has no need for liquidity in this
investment, (iii) is aware of and able to bear the risks of this investment for
an indefinite period of time and (iv) is presently able to afford a complete
loss of such investment;
d. The Subscriber recognizes that an investment in the
securities involves significant risks, including, without limitation, the
potential loss of the Subscriber's entire investment;
e. The Subscriber understands that none of the securities have
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any state in reliance upon exemptions therefrom
for private offerings. The Subscriber understands that the securities must be
held indefinitely unless the sale thereof is subsequently registered under the
Securities Act and applicable state securities laws or exemptions from such
registration are available. All certificates evidencing the Subscriber's
ownership of the securities will bear a legend stating that the securities have
not been registered under the Securities Act or state securities laws and they
may not be resold unless they are registered under the Securities Act and
applicable state securities laws or exempt therefrom.
f. The securities are being purchased solely for the
Subscriber's account for investment and not for the account of any other person
and not with a view to or for distribution, assignment or resale in connection
with any distribution within the meaning of the Securities Act, and no other
person has a direct or indirect beneficial interest in such securities. The
Subscriber represents that he has no agreement, understanding, commitment or
other arrangement with any person and no present intention to sell, transfer or
assign any securities;
g. The Subscriber realizes that he may not be able to sell or
dispose of any of the securities and that no market of any kind (public or
private) may be available for any of the securities. In addition, the Subscriber
understands that his right to transfer the securities will be subject to
restrictions contained in applicable Federal and state securities laws;
h. All information which the Subscriber has provided to the
Corporation concerning himself, his financial position and his knowledge of
financial and business matters, including all information contained in this
Subscription Agreement, is correct and complete as of the date set forth on the
signature page hereof, and if there should be any adverse change in such
information prior to his subscription being accepted, he will immediately
provide the Corporation with such information;
i. The Subscriber's principal residence (if subscriber is an
individual) or principal business address, as applicable, is in the State of
_______________, and the Subscriber has no present intention to move such
residence or principal business address, as applicable, from such State;
j. Neither the Subscriber nor any of his advisors are relying
on any financial projections in connection with determining the merits of an
investment in the securities. The Subscriber understands and acknowledges that
no representations concerning the accuracy of information or financial
projections, if any, are being made and he and all of his advisors have
completely disregarded such information or financial projections, if any, in
determining whether to invest in the securities;
3
k. The Subscriber understands that the Corporation may at any
time, in its sole discretion, arrange for the offer and sale of additional
shares of its capital stock to current or additional shareholders, at such
prices and in such amounts as it, in its sole discretion, may determine to be in
the best interests of the Corporation;
l. The Subscriber is unaware of, is in no way relying on, and
did not become aware of the offering of the securities through or as a result
of, any form of general solicitation or general advertising, including, without
limitation, any article, notice, advertisement or other communication published
in any newspaper, magazine or similar media or broadcast over television or
radio, in connection with the offering and sale of the securities and is not
subscribing for securities and did not become aware of the offering of the
securities through or as a result of any seminar or meeting to which the
Subscriber was invited by, or any solicitation of a subscription by, a person
not previously known to the Subscriber in connection with investments in
securities generally;
m. The Subscriber has taken no action which would give rise to
any claim by any person for brokerage commissions, finders' fees or the like
relating to this Agreement or the transactions contemplated hereby; and
n. The Subscriber has significant prior investment experience,
including investment in securities traded on the Over-the-Counter Bulletin
Board. The Subscriber is knowledgeable about investment considerations in
development stage companies. The investment is a suitable one for the
Subscriber.
5. The Subscriber understands and agrees that this subscription is
subject to the following terms and conditions:
a. This subscription is irrevocable and the execution and
delivery of this Agreement will not constitute an agreement between the
Subscriber and the Corporation until this Agreement has been accepted by the
Corporation;
b. The Corporation can, in it sole discretion, reject a
subscription as soon as practicable after receipt of the Subscriber's
subscription. The Subscriber will be promptly notified by the Corporation as to
whether his subscription has been accepted. If the Subscriber's subscription is
not accepted, his check or wire transfer amount (less any applicable bank
charges) will be returned promptly and all of his obligations hereunder shall
terminate; and
c. This subscription is not transferable or assignable, either
before or after acceptance hereof by the Corporation, and the securities
issuable on account of this subscription will only be issued in the name of, and
delivered to, the Subscriber.
6. The representations, warranties and agreements made by the
Subscriber herein have been made with the intent that they be relied upon by the
Corporation for purposes of the Offering. The Subscriber further undertakes to
notify the Corporation immediately of any change in any information supplied by
the Subscriber. If more than one person is signing this Agreement, each
representation, warranty and agreement shall be a joint and several
representation, warranty and agreement of each such Subscriber.
7. The Subscriber unconditionally agrees to indemnify and hold the
Corporation, its officers, directors, employees, agents and shareholders or any
other person who may be deemed to control the Corporation, and any of their
counsel and accountants, harmless from any loss, liability, claim, damage or
expense (including, without limitation, any and all expenses incurred in
investigating, preparing or defending against any litigation commenced or
threatened), arising out of the inaccuracy of any of the Subscriber's, or his
attorney's or agent's representations, warranties or statements or the breach of
any of the agreements contained herein.
8. This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the Province of British
Columbia, without regard to its conflicts of law principles. All parties hereto
(i) agree that any legal suit, action or proceeding arising out of or relating
to this Agreement shall be instituted only in a federal or provincial court in
the Province of British Columbia, (ii) waive any objection which they may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
as described in this Section 8, and (iii) irrevocably submit to the jurisdiction
4
of any federal or state court in the Province of British Columbia in any suit,
action or proceeding, but such consent shall not constitute a general appearance
or be available to any other person who is not a party to this Agreement.
9. SUBSCRIPTION. The Subscriber hereby subscribes for an aggregate
price of $____________ and has provided a check or wire transfer for that amount
payable to "SmarTire Systems, Inc."
TYPE OF OWNERSHIP:
Please check one:
_______________ Individual (One signature required)
_______________ Joint tenants with rights of survivorship (All parties must
sign)
_______________ Tenants by the Entirety (Both parties must sign)
_______________ Tenants in common (All parties must sign)
_______________ Corporation (Authorized officer must sign)
_______________ Other Entity (Specify type) (Authorized party must sign)
EXACT REGISTRATION NAME(S) FOR SHARE(S)
5
SIGNATURE PAGE FOR INDIVIDUAL INVESTORS
IN WITNESS WHEREOF, the Subscriber, intending to be legally bound, has
executed this Subscription Agreement as of the ___ of ____________, 2004.
INVESTOR
Signature:
--------------------------
Print Name:
-------------------------
INVESTOR
Signature:
--------------------------
Print Name:
-------------------------
6
SIGNATURE PAGE FOR CORPORATE INVESTORS
IN WITNESS WHEREOF, the Subscriber, intending to be legally bound, has
executed this Subscription Agreement as of the ___ day of _____________, 2004.
------------------------------------------
Name of Corporation
By:
--------------------------------------
Signature of authorized representative
Title:
-----------------------------------
Title of authorized representative
SIGNATURE PAGE FOR PARTNERSHIP INVESTORS
IN WITNESS WHEREOF, the Subscriber, intending to be legally bound, has
executed this Subscription Agreement as of the ___ day of ____________, 2004.
------------------------------------------------------
Name of Partnership
By:
--------------------------------------------------
Signature of general partner
Title:
-----------------------------------------------
Title of additional general partner if required
7
SIGNATURE PAGE FOR TRUST INVESTORS
IN WITNESS WHEREOF, the Subscriber, intending to be legally bound, has
executed this Subscription Agreement as of the ___ day of ____________, 2004.
----------------------------------------------
Name of Trust
By:
------------------------------------------
Signature of Trustee
Title:
---------------------------------------
Title of additional Trustee if required
8
CERTIFICATE FOR CORPORATE, PARTNERSHIP OR TRUST SUBSCRIBER
The Subscriber, an authorized officer, trustee or general partner of
_____________________________________________, hereby certifies that:
(a) The Subscriber has been duly formed and is validly existing under
the laws of the State of ____________, with full power and authority to invest
in _____________, a ______________ corporation; and
(b) The Subscriber's Subscription Agreement has been duly and validly
authorized, executed and delivered on behalf of the Subscriber and, upon the
Corporation's acceptance of the Subscriber's subscription, the Subscription
Agreement will constitute the valid, binding and enforceable agreement of the
Subscriber.
---------------------------------------------
Name of Subscriber
---------------------------------------------
Signature of an authorized corporate officer,
general partner or trustee
- ------------------------ ---------------------------------------------
Date Title
9
ACCEPTANCE
SMARTIRE SYSTEMS, INC. HEREBY ACCEPTS THE SUBSCRIPTION CONTAINED IN
THIS SUBSCRIPTION AGREEMENT.
SMARTIRE SYSTEMS, INC.
By:
------------------------------
Name:
----------------------------
Its:
-----------------------------
Date:
----------------------------
10
EXHIBIT "A"
WIRE INSTRUCTIONS
TO: CLARK, WILSON, AS ESCROW AGENT FOR SmarTire Systems, Inc.
ACCOUNT NUMBER:
ABA ROUTING NUMBER:
SWIFT CODE:
BANK:
FOR FURTHER CREDIT TO:
ACCOUNT NAME:
U.S. TRUST ACCOUNT NO.:
TRANSIT NO.:
BANK CODE:
A-1
================================================================================
SmarTire Systems, Inc.
ACCREDITED INVESTOR SUITABILITY QUESTIONNAIRE
================================================================================
Instructions. This Accredited Investor Suitability Questionnaire must
be completed by each person who has indicated an interest in purchasing the
securities. The purpose of this Accredited Investor Suitability Questionnaire is
to permit the Corporation to determine whether each such person meets certain
standards imposed by Federal and state securities laws.
If the answer to any question is "None" or "Not Applicable," please so
state.
Please complete, sign, date and return this Accredited Investor
Suitability Questionnaire to the Corporation. Should there be any material
change in the information contained herein prior to acceptance by the
Corporation of your subscription for the securities, you must notify the
Corporation or its authorized representative immediately.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
1
ACCREDITED INVESTOR SUITABILITY QUESTIONNAIRE
THIS QUESTIONNAIRE IS TO BE COMPLETED AND DELIVERED TO SmarTire Systems, Inc.
(THE "CORPORATION") PRIOR TO THE PURCHASE OF SECURITIES FROM THE CORPORATION.
INSTRUCTIONS:
If the answer to any question is "None" or "Not Applicable," please so state.
Your answers will, at all times, be kept strictly confidential; however, you
agree that the Corporation may present this Questionnaire to such persons as it
deems appropriate in order to ensure that the offer and sale of securities to
you will not result in violation of the exemption from registration under the
Securities Act of 1933, as amended (the "Act"), and the securities laws of
certain states. The representations contained herein are being relied upon by
the Corporation in connection with this offering.
(PRINT OR TYPE YOUR RESPONSES)
1. Name: ______________________________________________________________
Date of birth or year of organization: ________________________________
2. Home address or, if other than an individual, principal office address:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
3. I am subscribing for $________________________________________________
4.* Employer: ____________________________________________
Nature of business: ____________________________________________
Position: ____________________________________________
Nature of duties: ____________________________________________
Business address: ____________________________________________
Business telephone number: ____________________________________________
*This question is to be answered if the investor is an individual.
2
5. In the case of any individual investor, I am an Accredited Investor (as
defined in Rule 501 of Regulation D promulgated under the Act) because
I certify that (check all appropriate descriptions that apply):
(a) _____ I am a natural person whose individual net worth, or
joint net worth with my spouse, exceeds
$1,000,000.(1)
(b) _____ I am a natural person who had individual income
exceeding $200,000 in 2002 and 2003 and I have a
reasonable expectation of reaching the same income
level in 2004.(2)
(c) _____ I am a natural person who had joint income with my
spouse exceeding $300,000 in 2002 and 2003 and I have
a reasonable expectation of reaching the same income
level in 2004, as defined above.
(d) _____ I am a director or executive officer of the
Corporation. (Executive officer means the president;
any vice president in charge of a principal business
unit, division or function, such as sales,
administration or finance; or any other person or
persons who perform(s) similar policy-making
functions for the Corporation).
6. In the case of any partnership, corporation, trust and other entity
investor, the Subscriber certifies that (check one):
(a)(3) _____ Each equity owner of the investor is an Accredited
Investor because:
(i) The equity owner of the investor is a
natural person who had an individual income
(exclusive of any income attributable to his
or her spouse) in excess of $200,000 (or
joint income with that of his spouse in
excess of $300,000) in each of 2002 and 2003
and reasonably and fully expects to have an
individual income in excess of $200,000 (or
joint income with that of his spouse in
excess of $300,000) in 2004. "Individual
income" is defined in item 5(b) above;
- ----------
(1) For purposes of this item, "individual net worth" means the excess of total
assets at fair-market value, including home and personal property (and
including property owned by a spouse), over total liabilities.
(2) For purposes of this questionnaire, "individual income" means individual
annual adjusted gross income, as reported for federal income tax purposes,
plus (i) the amount of any tax-exempt interest income received; (ii) the
amount of losses claimed as a limited partner in a limited partnership;
(iii) any deduction claimed for depletion; (iv) amounts contributed to an
IRA or Keogh retirement plan; (v) alimony paid; and (vi) any amount by
which income from long-term capital gains has been reduced in arriving at
adjusted gross income pursuant to the provisions of Section 1202 of the
Internal Revenue Code of 1986, as amended.
(3) An investor initiating this paragraph must provide a questionnaire from
each of its equity owners. If the investor is a trust, only a trust which
is revocable and which may be amended at the sole discretion of its grantor
is eligible to qualify as an accredited investor under this item 6(a). The
grantors of the trust are deemed to be the equity owners of the trust and
each grantor must provide a questionnaire.
3
(ii) The equity owner is a natural person who has
an "individual net worth" (or who, with his
or her spouse, has a combined individual net
worth) in excess of $1,000,000. "Individual
net worth" is defined in item 5(a) above;
(iii) The equity owner is a director or executive
officer of the Corporation;
(iv) The equity owner is either (a) a bank as
defined in Section 3(a)(2) of the Act
whether acting in its individual or
fiduciary capacity; (b) an insurance company
as defined in Section 2(13) of the Act; (c)
an investment company registered under the
Investment Company Act of 1940 or a business
development company as defined in Section
2(a)(48) of that Act; (d) a Small Business
Administration under Section 301(c) or (d)
of the Small Business Investment Act of
1958; or (e) an employee-benefit plan within
the meaning of Title I of the Employee
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 such plan fiduciary is
either a bank, insurance company, or
registered investment adviser, or if the
employee-benefit plan has total assets in
excess of $5,000,000; or
(v) The equity owner is a private business
development company as defined in Section
202(a)(22) of the Investment Advisers Act of
1940.
(b) _____ That the investor is either (i) a bank as defined in
Section 3(a)(2) of the Act whether acting in its
individual or fiduciary capacity; (ii) an insurance
company as defined in Section 2(13) of the Act; (iii)
an investment company registered under the Investment
Company Act of 1940 or a business development company
as defined in Section 2(a)(48) of such Act; (iv) 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 (v) an employee-benefit plan within the meaning of
the Employee 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,
and the plan fiduciary is either a bank, insurance
company or registered investment adviser, or if the
employee-benefit plan has total assets in excess of
$5,000,000.
(c) _____ That the investor is a private business development
company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
(d) _____ That the investor is an organization described in
Section 501(c)(3) of the Internal Revenue Code of
1986, as amended, not formed for the specific purpose
of acquiring the securities with total assets
exceeding $5,000,000.
(e) _____ That the investor is a corporation, Massachusetts or
similar business trust or partnership, not formed for
the specific purpose of acquiring the securities,
with total assets exceeding $5,000,000.
(f) _____ That the investor is a trust, not formed for the
specific purpose of acquiring the securities, with
total assets exceeding $5,000,000 and whose purchase
is directed by a "sophisticated person," as defined
in Rule 506(b)(2)(ii) of Regulation D.
THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
4
U.S. ACCREDITED INVESTOR QUESTIONNAIRE
All capitalized terms herein, unless otherwise defined, have the meanings
ascribed thereto in the Subscription Agreement.
1. The Purchaser covenants, represents and warrants to the Company that:
(a) the Purchaser is a non-Canadian Person;
(b) the Purchaser has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits
and risks of the transactions detailed in the Securities
Purchase Agreement and it is able to bear the economic risk of
loss arising from such transactions;
(c) the Purchaser is acquiring the Convertible Debentures for
investment only and not with a view to resale or distribution
and, in particular, it has no intention to distribute either
directly or indirectly any of the Convertible Debentures in
the United States or to U.S. Persons; provided, however, that
the Purchaser may sell or otherwise dispose of any of the
Convertible Debentures pursuant to registration thereof
pursuant to the Securities Act of 1933 (the "Securities Act")
and any applicable state or provincial securities laws unless
an exemption from such registration requirements is available
or registration is not required pursuant to Regulation S under
the Securities Act or registration is otherwise not required
under this Securities;
(d) the Purchaser satisfies one or more of the categories
indicated below (please check the appropriate box):
[ ] Category 1: An organization described in Section 501(c)(3) of
the United States Internal Revenue Code, a corporation, a
Massachusetts or similar business trust or partnership, not
formed for the specific purpose of acquiring the Securities,
with total assets in excess of US $5,000,000;
[ ] Category 2: A natural person whose individual net worth, or
joint net worth with that person's spouse, on the date of
purchase exceeds US $1,000,000;
[ ] Category 3: A natural person who had an individual income in
excess of US $200,000 in each of the two most recent years or
joint income with that person's spouse in excess of US
$300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current
year;
[ ] Category 4: A "bank" as defined under Section (3)(a)(2) of the
Securities Act or savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the Securities
Act acting in its individual or fiduciary capacity; a broker
dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934 (United States); an insurance company as
defined in Section 2(13) of the Securities Act; an investment
company registered under the Investment Company Act of 1940
(United States) or a business development company as defined
in Section 2(a)(48) of such Act; 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 (United States); a plan with total assets in
excess of $5,000,000 established and maintained by a state, a
political subdivision thereof, or an agency or instrumentality
of a state or a political subdivision thereof, for the benefit
of its employees; an employee benefit plan within the meaning
of the Employee Retirement Income Security Act of 1974 (United
States) whose investment decisions are 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, whose investment decisions are made solely
by persons that are accredited investors;
[ ] Category 5: A private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940
(United States);
[ ] Category 6: A director or executive officer of the Company;
[ ] Category 7: A trust with total assets in excess of $5,000,000,
not formed for the specific purpose of acquiring the
Securities, whose purchase is directed by a sophisticated
person as described in Rule 506(b)(2)(ii) under the Securities
Act; or
[ ] Category 8: An entity in which all of the equity owners
satisfy the requirements of one or more of the foregoing
categories; and
5
(e) the Purchaser is not acquiring the Securities as a result of
any form of general solicitation or general advertising
including advertisements, articles, notices or other
communications published in any newspaper, magazine or similar
media or broadcast over radio, or television, or any seminar
or meeting whose attendees have been invited by general
solicitation or general advertising.
IN WITNESS WHEREOF, the undersigned has executed this Questionnaire as of ______
__, 2004.
[PURCHASER]
By:
-----------------------
Name:
Title:
SIGNATURE PAGE FOLLOWS
6
The Subscriber certifies that the foregoing responses are true, complete and
accurate to the best of the Subscriber's knowledge and belief. The Subscriber
will provide such further information as may be requested by the Corporation to
verify this response. The Subscriber will notify the Corporation in writing
regarding any material change to this response prior to the closing of the
purchase of all securities from the Corporation. Absent such notification, the
issuance of securities in the name of the Subscriber shall be deemed to be an
automatic affirmation by the Subscriber of the truth and accuracy of the
statements and information set forth above.
- --------------------- -----------------------------------------------
Date Type or Print Name of Prospective Investor
-----------------------------------------------
Signature of Prospective Investor or Authorized
Signatory of Entity Investor, as applicable
-----------------------------------------------
Title of Authorized Signatory of Entity Investor
(if applicable)
7