EXHIBIT 4.4
THE SECURITIES BEING SUBSCRIBED FOR HAVE NOT BEEN REGISTERED UNDER ANY FEDERAL
OR STATE SECURITIES LAWS AND CANNOT BE RESOLD UNLESS THEY ARE REGISTERED
THEREUNDER OR EXEMPTIONS FROM SUCH REGISTRATION REQUIREMENTS ARE AVAILABLE TO
THE SATISFACTION OF THE ISSUER.
BANNER HOLDING CORP.
SUBSCRIPTION AGREEMENT
Banner Holding Corp.
000 X. X.X. Xxx Xxx
Xxxxxxxx, Xxxxxxx 00000
Gentlemen:
1. SUBSCRIPTION
(a) The undersigned (the "Investor") hereby subscribes for and
agrees to purchase one million three hundred fifty thousand (1,350,000) shares
of the Common Stock ("Shares") of Banner Holding Corp., a Florida corporation
(the "Company"), in consideration for the payment by the undersigned to the
Company of seventeen thousand five hundred fifty dollars ($17,550).
(b) The Investor acknowledges and agrees that it is not entitled to
cancel, terminate or revoke this subscription or any agreements of the Investor
hereunder except as otherwise expressly set forth herein; provided, however,
that if the Company shall not have accepted this subscription on or before the
close of business on the fifth day following its receipt this subscription and
all agreements of the Investor hereunder shall be canceled and this Agreement
shall be returned to the Investor together with all monies paid herewith without
interest or deduction for expenses.
2. VERIFICATION OF SUITABILITY AND STATUS AS ACCREDITED
In order to induce the Company to accept this subscription, and in order
to determine that the Investor is qualified to acquire the Shares the Investor
represents and warrants that it has ample knowledge, experience and net worth to
understand the varied aspects, including the risks, of an investment for Shares.
Additionally, the Investor represents and warrants that it is "accredited" as
that term is defined in Rule 501 of Regulation D under the Securities Act of
1933, as amended (the "Act").
3. CERTAIN ACKNOWLEDGEMENTS AND AGREEMENTS OF THE INVESTOR
The Investor understands and agrees that:
(a) This subscription for Shares may be accepted or rejected, in
whole or in part, by the Company in its sole and absolute discretion.
(b) Except as provided under applicable state securities laws, this
subscription is and shall be irrevocable, except that the Investor shall have no
obligations hereunder if this subscription is for any reason rejected.
(c) No federal or state authority has made any finding or
determination as to the fairness of an investment in the Company and no federal
or state authority has recommended or endorsed or will recommend or endorse the
Shares.
(d) Because the Investor is domiciled in Florida, the Investor is
hereby notified of its right to withdraw its subscription for Shares pursuant
to Section 517.05(11) of the Florida Statutes. The Investor represents that it
may elect, within three (3) days after the delivery of the Subscription
Agreement, to rescind the Subscription Agreement and receive a full refund of
all monies paid for the Shares. Such rescission will be without any liability
to any person. To accomplish this rescission, the Investor need only send a
letter or a telegram to the Company, at the address set forth above, indicating
its intention to rescind. If a letter is sent, the Investor under stands that
it is advisable that the letter be sent by registered or certified mail, return
receipt requested, to ensure that it is received and also to evidence the date
on which it is mailed. If the Investor orally requests to rescind, the Investor
should ask for written confirmation that the request has been received.
4. CERTAIN ADDITIONAL REPRESENTATIONS AND WARRANTIES OF
THE INVESTOR
The Investor understands that the Shares are being sold in reliance upon
exemptions provided in the Act and/or Regulation D promulgated thereunder for
transactions not involving any public offering, and the Investor, for the
Investor and for the Investor's successors and assigns, makes the following
representations, declarations and warranties with the intent that the same may
be relied upon in determining the suitability of the Investor as a purchaser of
Shares:
(a) THE INVESTOR HAS HAD AN ADEQUATE OPPORTUNITY TO AND HAS
CONSULTED ITS OWN ATTORNEY, ACCOUNTANT OR INVESTMENT ADVISOR WITH RESPECT TO THE
INVESTMENT CONTEMPLATED HEREBY AND ITS SUITABILITY FOR THE INVESTOR.
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(b) The Company has made available to the Investor and its
representative, if any, prior to the execution of this subscription for Shares,
the opportunity to ask questions of and receive answers from representatives of
the Company concerning the terms and conditions of an investment for Shares and
to obtain any additional information necessary to verify the information given
by the Company relative to the financial data and business of the Company, to
the extent that the Company possesses such information or can acquire it without
unreasonable effort or expense, and all such questions, if asked, have been
answered satisfactorily and all such documents, if examined, have been found to
be fully satisfactory.
(c) The Investor understands, acknowledges and represents that: (i)
the Investor must bear the economic risk of an investment in the Shares for an
indefinite period of time; (ii) the Shares have not been registered under the
Act or any state securities laws and are being offered and sold in reliance upon
exemptions provided in the Act and state securities laws for transactions not
involving any public offering; (iii) the Investor is purchasing the Shares, and
any purchase of the Shares will be, for investment purposes only for the account
of the Investor and not with any view toward the distribution thereof; (iv) the
Investor has no contract, undertaking, agreement or arrangement with any person
to sell, transfer or pledge to such person or anyone else any of the Shares and
the Investor has no present plans to enter into any such contract, undertaking,
agreement or arrangement; (v) the Investor agrees not to resell or otherwise
dispose of all or any part of the Shares unless the intended disposition is
permissible under and does not violate the Act, any state securities laws or
rules or regulations thereunder; and (vi) the Company does not have any
obligation at any time to repurchase any Shares from the Investor or to arrange
for the purchase by any other person or entity of any Shares owned by the
Investor.
(d) The Investor is aware and acknowledges that: (i) an investment
in the Shares is speculative and involves a risk of loss of its entire
investment and no assurance can be given of any income from such investment;
(ii) there is no ready market for the Shares and it may not be possible for the
Investor to liquidate its investment in case of an emergency; and (iii) in
evaluating the suitability of an investment in the Shares, the Investor has not
relied upon any representations or other information (whether oral or written)
other than as made or given by the Company and from independent investigations
made by the Investor or representative(s) of the Investor.
(e) The Investor has adequate means of providing for all its current
and foreseeable needs and contingencies, has no need for liquidity in this
investment and can bear the economic risk of the investment.
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(f) The aggregate amount of the investments of the Investor in, and
commitments to, all investments that are illiquid is reasonable in relation to
the Investor's net worth.
(g) The Investor maintains its domicile at the address shown on the
signature page of this Subscription Agreement, at which address the Investor has
subscribed for the Shares.
(h) This Subscription Agreement: (i) shall be binding upon the
Investor and the successors and assigns of the Investor; (ii) shall be governed,
construed and enforced in accordance with the laws of the State of Florida
without reference to any principles of conflict of laws (except insofar as
affected by the state securities or "blue sky" law of the jurisdiction in which
the Investor is domiciled); and (iii) shall survive the purchase of the Shares
by the Investor.
5. INDEMNIFICATION
The Investor recognizes that the sale of the Shares to the Investor is
being made in reliance upon the Investor's agreements, representations and
warranties set forth in Paragraphs 2, 3 and 4 hereof. The Investor hereby agrees
to indemnify the Company and its officers and directors for, and to hold each of
them harmless against, all liabilities, costs or expenses (including reasonable
attorneys' fees) arising as a result of the sale or distribution of the Shares
by the Investor in violation of the Act or any other applicable laws. In
addition, the Investor agrees to indemnify the Company and to hold its officers
and directors harmless from and against any and all losses, damages, liabilities
or expenses, including costs and reasonable attorneys' fees, to which they may
be put or which they may incur by reason of or in connection with any
misrepresentation made by the Investor with respect to the matters about which
representations and warranties are required by the terms of this Subscription
Agreement, or any breach of any such representations and warranties or any
failure to fulfill any covenants or agreements set forth herein.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
undersigned Investor has executed this Subscription Agreement.
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XXXXX X. XXXXXXX
-------------------------------- -----------------------------------
Subscriber's Name (Please Print) Signature of Subscriber
JANUARY 26, 1998
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Residence Address Date of Execution
--------------------------------
City, State, Zip Code
-------------------------------- -----------------------------------
Telephone Number Telecopier Number
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Social Security or Taxpayer
I.D. No.
CHECK APPROPRIATE CATEGORY: SUBSCRIPTION AMOUNT:
[X] Individual Total No. of Shares: 1,350,000
_____ Tenants in Common
_____ Joint Tenants with right
of survivorship
_____ Tenants by the Entireties
_____ As custodian, trustee, or agent for:
_____ Other (e.g. corporation,
partnership, etc.)
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