Exhibit 10.1
Name of Subscriber: Sunflower Capital, LLC
Number of Units: 1,066,667
SIRICOMM, INC.
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of the date set forth below, by and between
SiriCOMM, Inc., a Delaware corporation (the "Company") having its principal
office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Sunflower
Capital, LLC, a Missouri limited liability company having an office at 10801
▇▇▇▇▇▇, Suite 920, Overland Park, Kansas (the "Investor" or "Buyer").
W I T N E S S E T H:
WHEREAS, the Company desires to sell to the Investor 1,066,667 shares
(the "Shares") of its Common Stock, $0.001 par value, (the "Common Stock") and
1,066,667 five-year warrants to purchase additional shares of Common Stock for
$2.50 per share (the "Warrants") (collectively referred to as "Units"); and
WHEREAS, the Investor wishes, pursuant to the terms and conditions
hereinafter set forth, to purchase the 1,066,667 Units.
NOW THEREFORE, in consideration of the premises, and the respective
representations and warranties hereinafter set forth, the Company and the
Investor agree as follows:
1. SUBSCRIPTION.
The Investor, intending to be legally bound, hereby irrevocably
subscribes for and agrees to purchase 1,066,667 Units.
2. PURCHASE AND CLOSING.
2.1 The Investor delivers herewith One Million Five Hundred Thousand
Dollars ($1,600,000.50) ("Purchase Price") required to purchase 1,066,667 Units
subscribed for hereunder. The Purchase Price is being paid simultaneously
herewith by delivery of a check made payable or wire transfer to the Company.
The offer and sale of the Units is being effected in accordance with and in
reliance on the provisions of Rule 506 under Regulation D under the Act. The
Company, in its sole discretion, may sell fractional Units.
2.2 At such time as the Company receives $1,600,000.50, a closing will
be held and this subscription agreement will be accepted by the Company (the
"Closing").
2.3 At the Closing, the Company will deliver the following to the
Investor:
(a) a certificate, in due and proper form, representing 1,066,667
Shares of the Company's Common Stock upon which a legend
substantially in the following form will be endorsed.
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THESE SHARES UNDER THE SECURITIES ACT OF 1933 OR
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT"; and
(b) a duly executed Warrant to purchase 1,066,667 Shares, in the
form annexed hereto as Exhibit A representing the Warrants
included in the Units purchased; and
(c) a counterpart of this Agreement executed by the Company.
3. INVESTOR REPRESENTATIONS AND WARRANTIES.
The Investor hereby acknowledges, represents and warrants to, and
agrees with, the Company as follows:
3.1 The Investor is acquiring the Units for his own account as
principal, for investment purposes only, and not with a view to, or for, resale,
distribution or fractionalization thereof, in whole or in part, and no other
person has a direct or indirect beneficial interest in such Shares;
3.2 The Investor acknowledges his understanding that the offering and
sale of the Units is intended to be exempt from registration under the Act by
virtue of Section 4(2) of the Act and the provisions of Regulation D thereunder.
In furtherance thereof, the Investor represents and warrants to and agrees with
the Company as follows:
(a) the Investor has the financial ability to bear the economic
risk of his investment, has adequate means for providing for
his current needs and personal contingencies and has no need
for liquidity with respect to his investment in the Company;
(b) (i) if the Investor is a natural person, his net worth,
individually or jointly with his or her spouse,
exceeds $1,000,000 (inclusive of the value of home,
home furnishings and automobiles);
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(ii) his personal income exceeded $200,000 in 2003 and
2004 and reasonably expects that his or her personal
income will exceed $200,000 in 2005 (or whose joint
net income with that of his or her spouse exceeds
$300,000 for the relevant periods);
(c) if the Investor is an entity (i.e., a corporation,
partnership, trust or estate), each of the equity owners meet
the requirements of either category (b)(i) or category (b)(ii)
above and was not specifically formed to acquire the Units
subscribed for herein; or
(d) if the Investor is a corporation, trust, estate benefit plan,
partnership other entity, such otherwise comes within a
category of "accredited investor" as that term is defined in
Rule 501(a) of Regulation D under the Act (17 C.F.R.
230.501(a));
3.3 The Investor:
(a) has received copies of and has reviewed the Company's SEC
filings ("SEC Documents") and any documents which may have
been made available upon request and has carefully read the
SEC Documents and understands and has evaluated the risks of a
purchase of Units and has relied solely (except as indicated
in subsections (b) and (c), below) on the information
contained in the SEC Documents.
(b) has been provided an opportunity to obtain additional
information concerning the offering, the Company and all other
information to the extent the Company possesses such
information or can acquire it without unreasonable effort or
expense;
(c) has been given the opportunity to ask questions of and receive
answers from the Company concerning the terms and conditions
of the offering and other matters pertaining to this
investment, and has been given the opportunity to obtain such
additional information necessary to verify the accuracy of the
information contained in the SEC Documents or that which was
otherwise provided in order for the Investor to evaluate the
merits and risks of purchase of the Units to the extent the
Company possesses such information or can acquire it without
unreasonable efforts or expense, and has not been furnished
any other offering literature or prospectus except as
mentioned herein;
(d) has not been furnished with any oral representation or oral
information in connection with the offering of the Units which
is not contained in the SEC Documents; and
(e) has determined that the Units are a suitable investment and
that at this time the Investor could bear a complete loss of
its investment;
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3.4 The Investor is not relying on the Company with respect to economic
considerations involved in this investment.
3.5 The Investor represents, warrants and agrees that it will not sell
or otherwise transfer the Shares, Warrants or shares of Common Stock issuable
upon the exercise of the Warrants (collectively the "Securities") unless
registered under the Act or in reliance upon an exemption therefrom, and fully
understands and agrees that it must bear the economic risk of its purchase for
an indefinite period of time because, among other reasons, the Securities have
not been registered under the Act or under the securities laws of certain states
and, therefore, cannot be resold, pledged, assigned or otherwise disposed of
unless they are subsequently registered under the Act and under the applicable
securities laws of such states or an exemption from such registration is
available. The Investor also understands that the Company is under no obligation
to register the Securities on his behalf or to assist the Investor in complying
with any exemption from registration under the Act. The Investor further
understands that sales or transfers of the Securities or underlying securities
are restricted by the provisions of state securities laws;
3.6 If the Investor is a corporation, partnership, trust or other
entity, the person signing this Subscription Agreement on behalf of such entity
has been duly authorized by such entity to do so;
3.7 No representation or warranties have been made to the Investor by
the Company, or any officer, employee, agent, affiliate or subsidiary of the
Company, other than the representations of the Company herein;
3.8 Any information which the Investor has heretofore furnished to the
Company with respect to its financial position and business experience is
correct and complete as of the date of this Agreement, and if there should be
any material change in such information prior to the Closing Date, he will
immediately furnish such revised or corrected information to the Company; and
3.9 The foregoing representations, warranties and agreements shall
survive the Closing.
4. INVESTOR AWARENESS.
The Investor acknowledges, represents, agrees and is aware that:
4.1 No Federal or state agency has passed on the Securities or made any
finding or determination as to the fairness of this investment;
4.2 There are substantial risks incident to the purchase of Securities;
4.3 The investment in the Company is an illiquid investment and the
Investor must bear the economic risk of investment in the Securities for an
indefinite period of time;
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4.4 There are substantial restrictions on transferability of the
Securities;
4.6 The foregoing acknowledgments, representations, warranties and
agreements shall survive the Closing Date and the return of subscribers funds if
subscriptions are not accepted.
5. INDEMNITY.
The Investor agrees to indemnify and hold harmless the Company and each
other person, if any, who controls it within the meaning of Section 15 of the
Act against any and all loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all expenses whatsoever reasonably
incurred in investigating, preparing for or defending against any litigation
commenced or threatened or any claim whatsoever) arising out of or based upon
any false representation or warranty or breach or failure by the Investor to
comply with any covenant or agreement made by the Investor herein.
6. COMPANY REPRESENTATIONS AND WARRANTIES.
The Company hereby acknowledges, represents and warrants to, and agrees
with the Investor (which representations and will be true and correct as of the
date of the Closing as if the Agreement were made on the date of Closing) as
follows:
6.1 The Company has been duly organized, is validly existing and is in
good standing under the laws of the State of Delaware. The Company has full
corporate power and authority to enter into this Agreement and the Warrant
(collectively the "Transaction Documents") have been duly and validly
authorized, executed and delivered by the Company and are valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as such enforcement may be limited by the United States
Bankruptcy Code and laws effecting creditors rights, generally.
6.2 Subject to the performance by the Investors of its obligations
under this Agreement and the accuracy of the representations and warranties of
the Investor, the offering and sale of the Securities will be exempt from the
registration requirements of the Act.
6.3 The execution and delivery by the Company of, and the performance
by the Company of its obligations under the Transaction Documents in accordance
with their respective terms will not contravene any provision of applicable law
or the charter documents of the Company or any agreement or other instrument
binding upon the Company, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement in accordance with the terms of the Transaction Documents.
6.4 The SEC Documents did not, and through the date of the Closing will
not, contain an untrue statement of a material fact or omit to state a material
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fact necessary to make the statements therein, in light of the circumstances
under which they were made and at the time of their filing, not misleading.
6.5 All issued and outstanding shares of the Company's Common Stock and
preferred stock have been duly authorized and validly issued and are fully paid
and non-assessable. The Shares contained in the Units have been duly authorized
and, when issued and delivered pursuant to this Agreement, will be validly
issued and fully paid and non-assessable, and the Shares are not subject to any
preemptive or similar rights. In addition, the shares of Common Stock issuable
upon the exercise of the Warrants, when issued as provided in the Warrant will
be validly issued and fully paid and non-assessable, and such shares are not
subject to any preemptive or similar rights. The Company has sufficient
authorized and unissued shares of Common Stock as may be necessary to effect the
issuance of the Shares and shares underlying the Warrants. No further corporate
action is required on the Company's part to issue the Shares or the shares of
Common Stock upon exercise of the Warrants.
6.6 The Company is not in violation of its charter or bylaws and is not
in default in the performance of any bond, debenture, note or any other evidence
of indebtedness or any indenture, mortgage, deed of trust, license, contract,
lease or other instrument to which the Company is a party or by which it is
bound, or to which any of the property or assets of the Company is subject,
except such as have been waived or which would not have, singly or in the
aggregate, a material adverse effect on the Company, taken as a whole.
6.7 The execution and delivery by the Company of, and the performance
by the Company of its respective obligations under the Transaction Documents
will not contravene any provision of law known by the Company to be applicable
to it, or the charter documents of, the Company or any subsidiary of the
Company, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary of the Company and
no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under the Transaction Documents in accordance with their
respective terms.
6.8 There is no material litigation or governmental proceeding pending,
or to the knowledge of the Company, threatened against, or involving the
property or the business of the Company, or, to the best knowledge of the
Company which would adversely affect the condition (financial or otherwise),
business, prospects or results of operations of the Company, taken as a whole.
6.9 The Company has furnished or made available to the Buyer true and
correct copies of the SEC Documents. The SEC Documents are the only filings made
by the Company since January 1, 2003 pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act or pursuant to the Securities Act. The Company has
filed all reports, schedules, forms, statements and other documents required to
be filed by it under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
since January 1, 2003 and prior to the date of this Agreement.
6.10 The Company has not provided to the Buyer any information which
according to applicable law, rule or regulation, should have been disclosed
publicly prior to the date hereof by the Company but which has not been so
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disclosed. As of their respective dates, the SEC Documents complied, and all
similar documents filed with the SEC prior to the Closing Date will comply, in
all material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be, and rules and regulations of the SEC
promulgated thereunder and other federal, state and local laws, rules and
regulations applicable to such SEC Documents, and no document similar to the SEC
Documents filed by the Company with the SEC prior to the Closing Date will
contain, any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC
Documents, as of the dates thereof, complied, and all similar documents filed
with the SEC prior to the Closing Date will comply, as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC and other applicable rules and regulations with respect
thereto. Such financial statements were prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the periods
involved (except (i) as may be otherwise indicated in such financial statements
or the notes thereto or (ii) in the case of unaudited interim statements, to the
extent they may not include footnotes or may be condensed or summary statements
as permitted by Form 10-Q as promulgated by the SEC) and fairly present in all
material respects the financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the consolidated results of operations
and cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
6.11 The foregoing representations, warranties and agreements shall
survive the Closing.
7. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The Investor understands that the Company's obligation to sell the
Units to the Investor pursuant to this Agreement on the Closing Date is
conditioned upon:
7.1 Delivery by the Investor to the Company of good funds as payment in
full of an amount equal to the purchase price for the Units in accordance with
this Agreement;
7.2 The accuracy on the date hereof and the Closing Date of the
representations and warranties of the Investor contained in this Agreement, each
as if made on such date, and the performance by the Investor on or before such
date of all covenants and agreements of the Investor required to be performed on
or before such date;
7.3 There shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby, or requiring
any consent or approval which shall not have been obtained; and
7.4 No preliminary or permanent injunction or other order issued by any
court or governmental or regulatory authority, domestic or foreign, nor any
statute, rule, regulation, decree or executive order promulgated or enacted by
any governmental or regulatory authority, domestic or foreign, that declares
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this Agreement invalid or unenforceable in any material respect or that prevents
the consummation of the transactions contemplated hereby shall be m effect; and
no action or proceeding before any court or regulatory authority, domestic or
foreign, shall have been instituted or threatened in writing by any governmental
or regulatory authority, domestic or foreign, or by any other person (other than
the Company or any of its affiliates), which seeks to prevent or delay the
consummation of the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement and which, in any
such case, in the opinion of counsel to the Company, has a reasonable likelihood
of success.
8. CONDITIONS TO THE INVESTOR'S OBLIGATION TO PURCHASE.
The Company understands that the Investor's obligation to purchase the
Purchase Securities on the Closing Date is conditioned upon:
8.1 The execution and delivery of this Agreement and the other
Transaction Documents by the Company;
8.2 Delivery by the Company to the Investor of the securities in
accordance with this Agreement;
8.3 The accuracy in all material respects on such Closing Date of the
representations and warranties of the Company contained in this Agreement, each
as if made on such date, and the performance by the Company on or before such
date of all covenants and agreements of the Company required to be performed on
or before such date;
8.4 There shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby, or requiring
any consent or approval that shall not have been obtained; and
8.5 No preliminary or permanent injunction or other order issued by any
court or governmental or regulatory authority, domestic or foreign, nor any
statute, rule, regulation, decree or executive order promulgated or enacted by
any governmental or regulatory authority, domestic or foreign, that declares
this Agreement invalid or unenforceable in any material respect or that prevents
the consummation of the transactions contemplated hereby shall be in effect; and
no action or proceeding before any court or regulatory authority, domestic or
foreign, shall have been instituted or threatened in writing by any governmental
or regulatory authority, domestic or foreign, or by any other person (other than
Investor or any of Investor's affiliates), which seeks to prevent or delay the
consummation of the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement and which, in any
such case, in the opinion of counsel to Investor, has a reasonable likelihood of
success.
9. MISCELLANEOUS.
9.1 Modification. Neither this Agreement nor any provisions hereof
shall be modified, discharged or terminated except by an instrument in writing
signed by the party against whom any waiver, change, discharge or termination is
sought.
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9.2 Notices. Any notice, demand or other communication which any party
hereto may be required, or may elect, to give to anyone interested hereunder
shall be sufficiently given if (a) deposited, postage prepaid, in a United
States mail letter box, registered or certified mail, return receipt requested,
addressed to such address as may be given herein, or (b) delivered personally at
such address.
9.3 Counterparts. This Agreement may be executed through the use of
separate signature pages or in any number of counterparts, and each of such
counterparts shall, for all purposes, constitute one agreement binding on all
the parties, notwithstanding that all parties are not signatories to the same
counterpart.
9.4 Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and assigns. If the
undersigned is more than one person, the obligation of the Investor shall be
joint and several, and the agreements, representations, warranties and
acknowledgments herein contained shall be deemed to be made by and be binding
upon each such person and his heirs, executors, administrators and successors.
9.5 Entire Agreement. This instrument contains the entire agreement of
the parties, and there are no representations, covenants or other agreements
except as stated or referred to herein.
9.6 Assignability. This Agreement is not transferable or assignable by
the Investor except as may be provided herein.
9.7 Applicable Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Missouri for contracts to be wholly
performed in such state and without giving effect to the principles thereof
regarding the conflict of laws. Each of the parties consents to the exclusive
jurisdiction of the federal courts whose districts encompass any part of the
City of Joplin or the state courts of the State of Missouri sitting in the City
of Joplin in connection with any dispute arising under this Agreement and hereby
waives, to the maximum extent permitted by law, any objection, including any
objection based on forum non conveniens, to the bringing of any such proceeding
in such jurisdictions. To the extent determined by such court, the Company shall
reimburse the Buyer for any reasonable legal fees and disbursements incurred by
the Buyer in enforcement of or protection of any of its rights under any of the
Transaction Documents.
10. PRE-EMPTIVE RIGHTS.
For a period of two (2) years from the Closing, the Company shall not
issue, sell or exchange or agree to issued, sell or exchange (collectively
"Issue," and any issuance, sale or exchange resulting therefrom, an "Issuance")
any share of Capital Stock or any securities convertible into the company's
Capital Stock (collectively "Securities") (other than securities issued by the
Company in an underwritten Initial Public Offering or the private placement of
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up to $3,500,000 of the Company's securities on the same terms as being
purchased by the Investor herein), except as authorized by the Board of
Directors and in accordance with the following procedures:
(a) The Company shall deliver to the Investor a written notice (a
"Pre-emptive Notice"), which shall (i) state the Company's
intention to Issue Securities to one or more Persons, the
amount and type of Securities to be Issued (the "Securities
Issuance"), the purchase price ("Purchase Price") therefor and
a summary of the other material terms of the proposed Issuance
and (ii) offer the Investor the option to acquire a part of
the Securities Issuance based on its and its affiliates
percentage of ownership in the Company (the "Pre-emptive
Offer"). The Pre-emptive Offer shall remain open and
irrevocable for the periods set forth below (and, to the
extent the Pre-emptive Offer is accepted during such periods,
until the consummation of the Issuance contemplated by the
Pre-emptive Offer). The Investor shall have the right and
option, for a period of 15 business days after delivery of the
Pre-emptive Notice (the "Pre-emptive Acceptance Period"), to
accept all or any part of the Securities Issuance at the
purchase price and on the terms stated in the Pre-emptive
Notice. Such acceptance shall be made by delivering a written
notice to the Company by the Investor within the Pre-emptive
Acceptance Period specifying the maximum number of shares of
the Securities Issuance the Investor will purchase (the
"Accepted Securities").
(b) If effective acceptance shall not be received pursuant to
Section 7(a) above with respect to all of the Securities
Issuance offered for sale pursuant to the Pre-emptive Notice,
then the Company may Issue all or any portion of such
Securities so offered for sale and not so accepted, at a price
not less than the Purchase Price, and on terms not more
favorable to the purchaser thereof than the terms, stated in
the Pre-emptive Notice at any time within 90 days after the
expiration of the Pre-emptive Acceptance Period (the "Issuance
Period"). In the event that all of the Securities Issuance is
not Issued by the Company during the Issuance Period, the
right of the Company to Issue such unsold Securities Issuance
shall expire and the obligations of this Section 7 shall be
reinstated.
(c) All sales of Securities Issuance to Investor subject to any
Pre-emptive Notice shall be consummated contemporaneously at
the offices of the Company on a mutually satisfactory business
day within 5 days after the expiration of the Pre-emptive
Acceptance Period. The delivery of certificates or other
instruments evidencing such Securities Issuance shall be made
by the Company on such date against payment of the Purchase
Price for such Securities Issuance.
11. EXECUTION.
11.1 Subscriber. The Investor has executed this Subscription Agreement
on this _________ day of April, 2005.
Number of Units to be purchased: 1,066,667
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Price per Unit: $1.50
Total Purchase Price: $1,600,000.50
Investor Address for Notices: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
INSTRUCTION: (The execution pages and acknowledgment for subscribers follows
this page.)
11.2 The Company.
Accepted this 11th day of April, 2005.
SIRICOMM, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CEO
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EXECUTION
Please execute this Agreement by completing the appropriate section
below.
1. If the prospective investor is an INDIVIDUAL, complete the
following:
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Signature of Proposed Investor
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Name (Please type or print)
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Signature of Spouse or Co-Investor if funds are to be invested
as joint tenants, tenants by the entirety or community
property.
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Name (Please type or print)
Address: _____________________________________________________
Social Security or Tax I.D. No.:______________________________
2. If the prospective investor is a CORPORATION, complete the
following:
The Investor hereby represents, warrants and covenants that the
Investor has been duly authorized by all requisite action on the part of the
prospective investor listed below to enter into this Securities Purchase
Agreement and make the investment representations contained therein and,
further, that the prospective investor has all requisite authority to enter into
such Agreement.
The Investor represents and warrants that each of the above
representations or agreements or understandings set forth herein applies to that
prospective investor and that he has authority under the charter, by-laws and
resolutions of the Board of Directors of such prospective investor to execute
this Agreement. Such officer encloses a true copy of the charter, the by-laws
and the resolutions of the Board of Directors authorizing the execution of this
Securities Purchase Agreement and make the investment representations contained
therein.
Sunflower Capital, LLC
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Name of Corporation (Please type or print)
Address: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name of Signatory: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
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Title: Managing Member
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Social Security or Tax I.D. No.: 20-263****
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3. If the prospective investor is a PARTNERSHIP, complete the
following:
The Investor hereby represents, warrants and covenants that the
Investor is a general partner of the prospective investor named below, has been
duly authorized by the prospective investor to acquire the Shares, the
prospective investor has all requisite authority to enter into this Securities
Purchase Agreement and make the investment representations contained therein and
set forth below are the names of all Partners of the prospective investor.
The Investor represents and warrants that each of the above
representations or agreements or understandings set forth herein applies to that
prospective investor and he is authorized by such prospective investor to
execute this Securities Purchase Agreement and make the investment
representations contained therein. Such Partner encloses a true copy of the
Partnership Agreement of said prospective investor.
Name of Partnership (Please type or print)
Address: _____________________________________________________
By: __________________________________________________________
Name of Signatory:____________________________________________
Title:________________________________________________________
Names of Partners:
Social Security or Tax I.D. No.:______________________________
4. If the prospective investor is a TRUST, complete the following:
The Investor hereby represents, warrants and covenants that he as
Trustee is duly authorized by the terms of the trust instrument ("Trust
Instrument") for the prospective investor set forth below to enter into this
Securities Purchase Agreement and make the investment representations contained
therein.
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The Investor, as trustee, executing this Securities Purchase Agreement
and making the investment representations contained therein, on behalf of the
prospective investor represents and warrants that each of the above
representations or agreements or understandings set forth herein applies to that
prospective investor and he is authorized by such prospective investor to
execute this Securities Purchase Agreement and make the investment
representations contained therein. Such trustee encloses a true copy of the
Trust Instrument of said prospective investor.
Name of Trust (Please type or print)
Address: _____________________________________________________
By: __________________________________________________________
Name of Signatory:____________________________________________
Title:________________________________________________________
Social Security or Tax I.D. No.:______________________________
5. If the prospective investor is an ESTATE, complete the following:
The Investor hereby represents, warrants and covenants that he is duly
authorized by the terms of the Will, and/or Codicil of the prospective investor
named below to enter into this Securities Purchase Agreement and make the
investment representations contained therein and that the prospective investor
has all requisite authority to enter into such Agreement, pursuant to Letters
Testamentary issued by a court of appropriate jurisdiction.
The Investor represents and warrants that each of the above
representations or agreements or understandings set herein applies to that
prospective investor and he is authorized by the terms of the Will and/or
Codicil of such prospective investor to execute this Securities Purchase
Agreement and make the investment representations contained therein. Such
Executor encloses a true copy of the Will, including any codicils thereto and
Letters Testamentary issued by a court of appropriate jurisdiction, and any and
all amendments thereto, of said prospective investor.
Name of Estate (Please type or print)
Address: _____________________________________________________
By: __________________________________________________________
Name of Signatory:____________________________________________
Title:________________________________________________________
Social Security or Tax I.D. No.:______________________________
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INDIVIDUAL ACKNOWLEDGMENT
STATE OF ____________________ )
) ss.:
COUNTY OF ___________________ )
On the ______ day of _____________, 2005, before me personally came
________________________________________, known to me to be the individual(s)
described in and who acknowledged the foregoing instrument and swore and
acknowledged that (he)(she)(they) executed the same as (his)(her)(their) free
act and deed.
---------------------------------
Notary Public
My commission expires: __________
PARTNERSHIP ACKNOWLEDGMENT
STATE OF ____________________ )
) ss.:
COUNTY OF ___________________ )
On the ______ day of _____________, 2005, before me personally appeared
the above-named general partner of
_______________________________________________, who swore and acknowledged that
being authorized and directed to do so (s)he did sign the foregoing instrument,
and that the same is the free act and deed of said Partnership and the free act
and deed personally of such general partner.
---------------------------------
Notary Public
My commission expires: __________
15
CORPORATE ACKNOWLEDGEMENT
STATE OF KANSAS )
) ss:
COUNTY OF ▇▇▇▇▇▇▇ )
On this 8th day of April, 2005, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, to me known who being by me duly sworn did depose and say that he is the
Managing Member of Sunflower Capital, LLC, the corporation described in and
which executed the foregoing instrument; that he knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Notary Public
My commission expires: 10/6/07
ESTATE OR TRUST ACKNOWLEDGMENT
STATE OF ____________________ )
) ss.:
COUNTY OF ___________________ )
On the _______ day of _____________________, 2005, before me personally
came ___________________________________________, [the executor of the Last Will
and Testament of ______________________________________________________,
deceased] or [administrator of the good, chattels and credits
_________________________________ of ___________________________, deceased] or
[trustee ________________________________ of
__________________________________________, deceased] residing in
______________________________________________________, and known to me to be
the person described in and who executed the foregoing instrument and
acknowledged that (s)he executed the same as such [executor] or [administrator]
or [trustee].
---------------------------------
Notary Public
My commission expires: __________
16
