OFFSHORE SECURITIES DEFERRED SUBSCRIPTION AGREEMENT
This Offshore Securities Deferred Subscription Agreement is executed in
reliance upon the transaction exemption afforded by Regulation S ("Regulation
S") as promulgated by the Securities and Exchange Commission ("SEC"), under the
Securities Act of 1933, as amended ("1933 Act").
This Offshore Securities Deferred Subscription Agreement has been
executed by the undersigned in connection with the private placement of shares
of Common Stock (hereinafter referred to as the "Shares") of:
AFFINITY TELEPRODUCTIONS, INC.
00000 Xxxxx Xxxxxxx Xxx., Xxxxx 000
Xxxxx, Xxxxxxx 00000
National Association of Securities Dealers Automated Quotation System Symbol
("AFTY") a corporation organized under the laws of Delaware, United States of
American (hereinafter referred to as the "ISSUER").
1. Subscription. The undersigned:
NAME: PHILMONT A.V.V.
ADDRESS: Sun Plaza
306-160 Xxxxx Xxxxxx Xxxxx Blvd.
Aruba
A Corporation organized under the laws of ARUBA, a non-USA Jurisdiction
(hereinafter referred to as the "PURCHASER"), hereby represents and warrants to,
and agrees with ISSUER as follows:
a. The PURCHASER hereby subscribes for One Million (1,000,000)
shares (the "Stock" or the "Shares") of the Company's Common
Stock at a subscription price equal to $5.00 per share
(calculated by applying a 20% discount of the trading value of
$6.25 per share) payable in United States Dollars for a total
consideration of Five Million Dollars ($5,000,000). The total
consideration is based upon the trading bid price of the stock
on the day prior to the close hereof. Any fluctuation in the
trading price shall be reflected as an adjustment of the
consideration calculated as set for in this Section 1 (a). The
Stock shall be common stock, approved by the Board of
Directors of the ISSUER, and will be entitled, unless the
Promissory Note as set forth in paragraph 1 (b) (i) is paid in
full, no rights to cash or property distributions, dividends,
interest paid by coupon or otherwise, distribution of
certificates, warrants, rights, stocks or cash representing
subdivision, combination, reclassification, merger, buy-out,
acquisition, redemption, exchange, or any such other corporate
or government action pertaining to or involving the ownership
rights of the Stock transferred hereunder. The PURCHASER,
unless the Promissory Note as set forth in paragraph 1 (b) (i)
is paid in full, shall not be entitled to exercise any voting
or consensual rights pertaining to or arising from the
ownership of the Stock. In the event the bid price of the
Stock should decline to less than $5.00 per share, the
PURCHASER shall notify the ISSUER, and the ISSUER shall within
5 days after receipt of said notice, cause to deliver
additional stock in conformance with this paragraph 1 in
quantify sufficient to restore the valuation of all the Stock
issued to the PURCHASER to the original calculated amount as
set forth in Section 1 (b) (i). Any additional stock shall be
issued in 25,000 share increments. The Promissory Note may not
be prepaid, in whole or in part, in advance.
b. Form of payment. PURCHASER shall pay the total
consideration as follows:
(i) In the form of a Promissory Note in the amount of
$5,000,000, (representing a 20% discount from the
fair market value of the Stock of $6,250,000),
bearing interest at the rate of Ten (10%) percent per
annum, payable monthly, interest only, in advance in
the approximate amount of Forty One Thousand Six
Hundred Sixty-Seven Dollars ($41,667) per month, all
principal and interest due in twelve (12) months (the
"Termination Date"). The initial interest calculation
is based upon the value of the Stock transferred.
Subsequent monthly interest shall be calculated on
the first day of each month by applying the interest
rate of 80% of the then fair market value of the
Stock computed as the average of the price for the
previous 20 trading days as determined five (5) days
prior to the payment due date. Payment shall be due
by wire transfer, as set forth hereinbelow, on the
10th of each and every month.
(ii) Upon the expiration of the term of the
Promissory Note, the ISSUER shall in its sole
discretion, have the option to acquire the shares
subscribed herein by the PURCHASER in exchange for
the full cancellation of the Promissory Note. The
ISSUER shall notify the PURCHASER in writing of its
intent to acquire the shares before the due date of
the Promissory Note. The transaction contemplated in
this Section 1 (b) (ii) shall be accomplished by the
PURCHASER tendering its shares to the ISSUER within
15 days of the expiration of the term of the
Promissory Note. Within 5 days of the receipt of the
shares, the ISSUER shall return the Promissory Note
to the PURCHASER marked "Paid in Full."
(iii) To the extent ISSUER does not exercise its
option in Section 1 (b) (ii), upon the expiration of
the term of the Promissory Note, the PURCHASER shall,
in its sole discretion, have the option to transfer
("put") the Stock
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subscribed herein to the ISSUER in exchange for the
full cancellation of the Promissory Note. The
PURCHASER shall notify the ISSUER in writing of the
intent to "put" the Stock to the ISSUER on or before
the due date of the Promissory Note. The transaction
contemplated in this Section 1 (b) (iii) shall be
accomplished by the undersigned tendering the Stock
to the ISSUER within 15 days of the expiration of the
term of the Promissory Note. Within 5 days of the
receipt of the Stock, the ISSUER shall return the
Promissory Note to the PURCHASER marked "PAID IN
FULL."
(iv) The principal amount of the Promissory Note
shall be adjusted on the due date by multiplying
(0.8) times the fair market value of the Stock on the
due date as determined in paragraph 1 (b) (i),
herein.
(v) The sum of Eighty-Three Thousand Three Hundred
Thirty-Three Dollars ($83,333), representing the
first and last months interest shall be tendered in
good funds by wire transfer to the account as set
forth below.
(vi) In the event any installment as set forth in
this paragraph 1 (b) is more than 5 days late,
default shall be deemed to have occurred. The ISSUER
shall make written demand for payment of the late
installment, and should payment not be made by the
undersigned within 5 days of the tendering of such
written demand, the ISSUER shall be entitled to
declare the entirety of the Promissory Note due, and
the undersigned shall return the Stock to the ISSUER
within 72 hours of the ISSUER's demand. The
undersigned shall continue to be liable for any
unpaid interest pro-rated through the date of the
return of the Stock to the ISSUER.
Any money shall be delivered in good funds by wire transfer in
United States Dollars, subject to any further instructions, as
follows:
Nations Bank of Florida
00000 X. Xxxxxxx Xxx.
Xxxxx, XX 00000
Account No.: 3603136640
ABA Routing No.: 000000000
Account Name: Affinity Teleproductions, Inc.
2. Subscriber Representations; Access to information; independent
investigation.
a. Offshore Transaction. PURCHASER represents and warrants to
ISSUER as follows:
(i) Neither the PURCHASER nor any person or entity
for whom the PURCHASER is acting as fiduciary is a
U.S. person. A U.S. person means any one of the
following:
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(1) any natural person resident in the
United States of America;
(2) any partnership or corporation organized
or incorporated under the laws of the United
States of America;
(3) any estate of which any executor or
administrator is a U.S. person;
(4) any trust of which any trustee is a U.S.
person;
(5) any agency or branch of a foreign entity
located in the United States of American;
(6) any non-discretionary account or similar
account (other than an estate or trust)held
by a dealer or other fiduciary for the
benefit or account of a U.S. person;
(7) any discretionary account or similar
account (other than an estate or trust) held
by a dealer or other fiduciary organized,
incorporated or (if an individual) resident
in the United States of America; and
(8) any partnership or corporation if:
(A) organized or incorporated under
the laws of any foreign
jurisdiction; and
(B) formed by a U.S. person
principally for the purpose of
investing in securities not
registered under the 1933 Act,
(whenever such term is used herein,
it shall have the meaning given in
Regulation S);
(ii) At the time the buy order was originated,
PURCHASER was outside the United States of America
and is outside of the United States of America as of
the date of the execution and delivery of this
Offshore Securities Deferred Subscription Agreement.
No offer to purchase the Shares was made in the
United States of America.
(iii) PURCHASER is purchasing the Shares for
PURCHASER's own account or for the account of
beneficiaries for whom the PURCHASER has full
investment discretion with respect to the Shares and
whom the PURCHASER has full authority to bind so that
each such beneficiary is bound hereby as if such
beneficiary were a direct PURCHASER hereunder and all
representations, warranties and agreements herein
were made directly by such beneficiary.
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(iv) Each distributor participating in the offering
of the Shares, if any, has agreed in writing that all
offers and sales of the Shares prior to the
expiration of a period commencing on the date of the
closing of the offering of Shares and ending 40 days
thereafter (the "Restricted Period") shall only be
made in compliance with the safe harbor contained in
Regulation S, pursuant to registration of Shares
under the 1933 Act or pursuant to an exemption from
registration under the 1933 Act.
(v) PURCHASER REPRESENTS AND WARRANTS AND HEREBY
AGREES THAT ALL OFFERS AND SALES OF THE SHARES PRIOR
TO THE EXPIRATION OF THE RESTRICTED PERIOD SHALL ONLY
BE MADE IN COMPLIANCE WITH THE SAFE HARBOR CONTAINED
IN REGULATION S, PURSUANT TO REGISTRATION OF
SECURITIES UNDER THE 1933 ACT OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, AND
ALL OFFERS AND SALES AFTER THE RESTRICTED PERIOD
SHALL BE MADE ONLY PURSUANT TO SUCH A REGISTRATION OR
TO SUCH EXEMPTION FROM REGISTRATION.
(vi) ALL OFFERING DOCUMENTS RECEIVED BY PURCHASER
INCLUDE STATEMENTS TO THE EFFECT THAT THE SHARES HAVE
NOT BEEN REGISTERED UNDER THE 1933 ACT AND MAY NOT BE
OFFERED OR SOLD IN THE UNITED STATES OR TO U.S.
PERSONS OR FOR THE ACCOUNT OR BENEFIT OF A U.S.
PERSON (OTHER THAN DISTRIBUTORS AS DEFINED IN
REGULATION S) DURING THE RESTRICTED PERIOD UNLESS THE
SHARES ARE REGISTERED UNDER THE 1933 ACT OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS IS
AVAILABLE.
(vii) PURCHASER acknowledges that the purchase of the
Shares involves a high degree or risk and further
acknowledges that PURCHASER can bear the economic
risk of the purchase of the Shares, including the
total los of PURCHASER's investment. PURCHASER
acknowledges that PURCHASER has obtained the advice
of competent legal counsel in PURCHASER's domicile
jurisdiction that PURCHASER is qualified under the
laws of it domicile to purchase the Shares offered
hereunder and that the offer and sale of the Shares
will not violate the laws of their domicile
jurisdiction.
(viii) PURCHASER understands that the Shares are
being offered and sold to him or it in reliance on
specific exemption from the registration requirements
of federal and state securities laws and the ISSUER
is
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relying upon the trust and accuracy of the
representations, warranties, agreements,
acknowledgments and understandings of PURCHASER set
forth herein in order to determine the applicability
of such exceptions and the suitability of PURCHASER
to acquire the Shares.
(ix) PURCHASER is sufficiently experienced in
financial and business matters to be capable of
evaluating the merits and risks of PURCHASER's
investments, and to make an informed decision
relating thereto.
(x) In evaluating PURCHASER's investment, PURCHASER
has consulted PURCHASER's own investment and/or legal
and/or tax advisors.
(xi) PURCHASER UNDERSTANDS THAT, IN THE VIEW OF THE
SEC, THE STATUTORY BASIS FOR THE EXEMPTION CLAIMED
FOR THIS TRANSACTION WOULD NOT BE PRESENT IF THE
OFFERING OF SHARES, ALTHOUGH IN TECHNICAL COMPLIANCE
WITH REGULATION S, IS PART OF A PLAN OR SCHEME TO
EVADE THE REGISTRATION PROVISIONS OF THE 1933 ACT.
PURCHASER IS ACQUIRING THE SHARES FOR INVESTMENT
PURPOSES AND HAS NO PRESENT INTENTION TO SELL THE
SHARES IN THE UNITED STATES OF AMERICAN TO A U.S.
PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S.
PERSON. PURCHASER HEREBY CONFIRMS THAT THE PURPOSE OF
INCLUDING THE PURCHASER REPRESENTATION LETTER
(SCHEDULE A) AS PROVIDED IN PARAGRAPH 7, IN ORDER TO
FACILITATE THE TRANSFER OF THE CERTIFICATES
REPRESENTING THE SHARES INTO STREET NAME, IS TO
ENABLE PURCHASER TO COMPLY WITH THE REQUIREMENTS OF
CERTAIN OFFSHORE PORTFOLIO MANAGEMENT REGULATIONS AND
THE SECURITY REQUIREMENTS OF OFFSHORE LENDERS FOR
MARGIN LOANS.
(xii) PURCHASER IS NOT AN UNDERWRITER OF, OR DEALER
IN, THE SHARES; AND PURCHASER IS NOT PARTICIPATING,
PURSUANT TO A CONTRACTUAL AGREEMENT, IN THE
DISTRIBUTION OF THE SHARES.
(xiii) PURCHASER represents and warranties that
neither PURCHASER nor any of PURCHASER's affiliates
will directly or indirectly maintain any short
position in Shares of the ISSUER during the Forty Day
(40) Transaction Restriction Period. If PURCHASER is
purchasing the Shares subscribed for hereby in
representative or fiduciary capacity, the
representations and warranties in this Offshore
Securities
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Deferred Subscription Agreement shall be deemed to
have been made on behalf of the person or persons for
whom PURCHASER is so purchasing.
The foregoing representations and warranties
are true and accurate as of the date hereof, shall be
true and accurate as of the date of the acceptance by
the ISSUER of PURCHASER's subscription, and shall
survive thereafter. If PURCHASER has knowledge, prior
to the acceptance of this Offshore Securities
Deferred Subscription Agreement by the ISSUER, that
any such representations and warranties shall not be
true and accurate in any respect, the PURCHASER,
prior to such acceptance, will give written notice of
such fact to the ISSUER specifying which
representations and warranties are not true and
accurate and the reasons therefor.
b. Current Public Information. PURCHASER acknowledges that
PURCHASER has been furnished with or has acquired copies of
the ISSUER's most recent Annual Report on Form 10-K and the
most recent Form 10-Q filed thereafter (collectively the "SEC
filings"), and other publicly available documents (together
with the SEC filings, the "Offer Documents").
c. Independent Investigation; Access. PURCHASER acknowledges
that PURCHASER in making the decision to purchase the Shares
subscribed for, has relied upon independent investigations
made by PURCHASER and PURCHASER's purchaser representatives,
if any, and PURCHASER and such representatives, if any, have,
prior to any sale to him or it, been given access and the
opportunity to examine all material books and records of the
ISSUER, all material contracts and documents relating to this
offering and an opportunity to ask questions of, and to
receive answers from ISSUER or any person acting on its behalf
concerning the terms and conditions of this offering.
PURCHASER and Purchaser's advisors, if any, have been
furnished with access to all publicly available materials
relating to the business, finances and operation of the ISSUER
and materials relating to the offer and sale of the Shares
which have been requested. PURCHASER and PURCHASER's advisors,
if any, have received complete and satisfactory answers to any
such inquiries.
d. No Government Recommendation or Approval. PURCHASER
understands that no federal or state agency has made or will
make any finding or determination relating to the fairness for
public investment in the Shares, or has passed on or made, or
will pass on or make, any recommendation or endorsement of the
Shares.
e. Entity Purchases. If PURCHASER is a partnership,
corporation or trust, the person executing this Offshore
Securities Deferred Subscription Agreement on PURCHASER's
behalf represents and warrants that:
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(i) he or she has made due inquiry to determine the
truthfulness of the representations and warranties
made pursuant to this Offshore Securities Deferred
Subscription Agreement; and
(ii) he or she is duly authorized (if the undersigned
is a trust, by the trust agreement) to make this
investment and to enter into and execute this
Offshore Securities Deferred Subscription Agreement
on behalf of such entity.
f. Covenants. PURCHASER and ISSUER hereby represent and
warrant that:
(i) Unauthorized Sale. Notwithstanding the 40 day
rule of Regulation S, no part of the Stock may be
sold, transferred, re- registered, conveyed or
otherwise disposed by PURCHASER in any form or manner
without the ISSUER's written consent for a period of
12 months. ISSUER may notify the appropriate
Corporate Transfer Agent for the Stock of the
restrictions imposed in this subparagraph.
(ii) Insolvency. In the event that the PURCHASER
becomes insolvent, or declares bankruptcy, then all
Stock shall be released to the ISSUER within 72 hours
of written demand by ISSUER of the herein described
event, without liability of any kind to the ISSUER.
(iii) Use of Assets. PURCHASER shall have the right
to use the Stock during the term hereof, for its
business purposes, provided that all such uses do not
break any of the United States Securities Laws and
Regulations, and Corporate law and Regulations of the
jurisdiction in which the PURCHASER is domiciled, and
the PURCHASER shall comply with generally accepted
accounting principles in dealing with the Stock.
(iv) Substitution of ISSUER. In the event ISSUER
desires to redeem, exchange or otherwise convert the
Stock held by PURCHASER during the term of the
Promissory Note, ISSUER shall deliver in exchange,
either:
(a) the cash proceeds from the sale of the
Stock;
(b) substitute stock;
(c) similar securities acceptable to
PURCHASER, in its sole discretion, with a
fair market value equal to the Stock
transferred.
g. 1934 Act Compliance. PURCHASER agrees to make all filings
required pursuant to the Securities and Exchange Act of 1934.
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3. Issuer Representations.
ISSUER represents and warrants to the PURCHASER as follows:
a. Reporting Company Status. ISSUER is a reporting issuer as
defined by Rule 902 of Regulation S.
b. Offshore Transaction. ISSUER has not offered these
securities to any person in the United States of America or to
any U.S. person or for the account or benefit of any U.S.
person.
c. No Directed Selling Efforts. In regard to this transaction,
ISSUER has not conducted any "directed selling efforts" as
that term is defined in Rule 902 of Regulation S and the
ISSUER has not conducted any general solicitation relating to
the offer and sale of the Shares to U.S. persons resident
within the United States of America or elsewhere.
d. Shares. The Shares when issued and delivered will be duly
and validly authorized and issued and, subject to receipt of
the full consideration as provided herein, fully paid and
non-assessable and will not subject to a stop transfer order
as described herein below. The issuance of the shares herein
is in full compliance with all state and federal securities
laws and regulations, subject to the representations and
warranties of PURCHASER set forth in paragraph 2 (a).
e. Offshore Securities Deferred Subscription Agreement. This
Offshore Securities Deferred Subscription Agreement, when
acknowledged by the signature of an officer of the ISSUER, has
been duly authorized, validly executed and delivered on behalf
of the ISSUER and is a valid and binding agreement in
accordance with its terms.
f. Non-contravention. The execution and delivery of the
Offshore Securities Deferred Subscription Agreement and the
consummation of the issuance of the Shares and the
transactions contemplated by this Offshore Securities Deferred
Subscription Agreement do not and will not conflict with or
result in a breach by the ISSUER of any of the terms or
provisions, of, or constitute a default under, the certificate
of incorporation or by-laws of the ISSUER, or any indenture,
mortgage, deed of trust, or other material agreement or
instrument to which the ISSUER is a party or by which it or
any of its properties or assets are bound, or any existing
applicable law, rule or regulation, or any applicable decrees,
judgment or order of any court, federal or state regulatory
body, administrative agency or other governmental body having
jurisdictions over the ISSUER or any of its properties or
assets.
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g. Prior Share Issues Under Regulation S. Except as previously
disclosed to the PURCHASER, ISSUER has not issued any shares
of its Common Stock under Regulation S subsequent to its
current SEC Filings except for any shares which may be issued
in connection with ISSUER's current financing activities and
shares issued as an adjustment to prior sales under Regulation
S.
h. Filings. ISSUER undertakes and agrees pursuant to the sale
of its securities under Regulations S to make all necessary
filings in connection with the sale of its securities as
required by the laws and regulations of all appropriate
jurisdictions.
i. Margin. ISSUER shall use its best efforts to become a
member of NASDAQ, National Market System, and be listed on the
Federal Margin List by March 1, 1996.
4. Indemnification.
a. Indemnification by Issuer. ISSUER shall indemnify and hold
harmless PURCHASER from and against any and all loss, damage,
expense (including court costs and reasonable attorneys'
fees), suit, action, claim, liability or obligation related to
or caused by ISSUER or arising from any misrepresentation,
breach of warranty or failure to fulfill any covenant or
agreement contained herein.
b. Indemnification by Purchaser. PURCHASER shall indemnify and
hold harmless ISSUER from and against any and all loss,
damage, expense (including court costs and reasonable
attorneys' fees), suit, action, claim, liability or obligation
related to, caused by or arising from any misrepresentation,
breach of warranty or failure to fulfill any covenant or
agreement contained herein by PURCHASER.
c. Defense of Claims. If any lawsuit or enforcement action is
filed against any party entitled to benefit of indemnity
hereunder, written notice thereof shall be given to the
indemnifying party as promptly as practicable; provided that
the failure of any indemnified party to give timely notice
shall not affect rights to demonstrates actual damages caused
by such failure. After such notice, if the indemnifying party
shall, within 10 days after receiving the indemnified party's
notice, acknowledge in writing to such indemnified party that
such indemnifying party shall be obligated under the terms of
its indemnity hereunder in connection with such lawsuit or
action, then the indemnifying party shall be entitled, if it
so elects, to take control of the defense and investigation of
such lawsuit or action and to employ and engage attorneys
satisfactory to the indemnified party to handle and defend the
same, at the indemnifying party's cost, risk and expense,
provided, however, that the indemnified party may, at its own
cost, employ its own counsel and participate in such
investigation, trial and defense of such lawsuit or action and
any appeal arising therefrom. The indemnifying party shall
not, without the indemnified party's written consent, settle
or compromise any such lawsuit or
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action; provided, however, that in the event the indemnified
party does not consent to such settlement or compromise, the
indemnifying party's indemnification liability to the
indemnified party hereunder with respect to such lawsuit or
action shall not exceed the amount contemplated by such
proposed settlement or compromise.
5. Expiration of Restricted Period. The transaction restriction in
connection with this offshore offer and sale restricts the PURCHASER
from offering and selling to U.S. persons or for the account or benefit
of a U.S. person for a forty (40) day period. Rule 903 (c)(2) governs
the forty (40) day transaction restriction. In the event that multiple
subscriptions are accepted by the ISSUER, each separate subscription
agreement shall be deemed to be a separate offering under Regulation S
and the forty (40) day restriction period shall begin for each
transaction separately on the date full payment is made to the ISSUER
for that specific transaction. Title to the Shares may be transferred
by PURCHASER to other non U.S. persons or entities in accordance with
Regulation S, subject to the restrictions imposed in Section 2 (f)(i)
of this Agreement.
6. Exemption: Reliance on Representations. PURCHASER understands that
the offer and sale of the Shares is not being registered under the 1933
Act. ISSUER is relying on the rules governing offers and sales made
outside the United States pursuant to Regulation S. Rules 901 through
903 of Regulation S govern this transaction.
7. Transfer Agent Instructions. ISSUER shall inform its Transfer Agent
of the restrictions imposed pursuant to Regulation S as set forth in
paragraph 2 (a) and of the instruction on transfer for 12 months as set
forth in Section 2 (f)(i). The Transfer Agent shall be given stop
transfer instructions accordingly and the Shares shall be freely
transferable on the books and records of the ISSUER only upon
subsequent compliance with applicable securities laws. These shares
shall be legend free.
8. Closing Date. The date of issuance of the Shares and the sale of the
Shares (the "Closing Date") shall be no later than January 26, 1996.
Closing shall be effectuated through delivery of funds to the accounts
designed in Section 1 (b) hereof, provided, however, that the Shares
are delivered in accordance with Section 10, herein.
9. Conditions to the Issuer's Obligation to Sell. ISSUER reserves the
right in its complete discretion to reject this Offshore Securities
Deferred Subscription Agreement PURCHASER understands that ISSUER's
obligation to sell the Shares is conditioned upon:
a. The receipt and acceptance by ISSUER of this Offshore
Securities Deferred Subscription Agreement for all of the
Shares is evidenced by execution of this Offshore Securities
Deferred Subscription Agreement by the President or any Vice
President or any Director of the ISSUER.
b. Delivery to ISSUER of goods funds as set forth in paragraph
1 (b) as payment in full for the purchase of the Shares, and
all fees and commissions.
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10. Conditions to Purchaser's Obligations to Purchase. ISSUER
understands that PURCHASER's obligation to purchase the Shares, and
deliver the consideration described herein, is conditioned upon
delivery of the certificates representing the Shares according to the
delivery instructions in Section 14, hereinbelow. Prior to the delivery
of the shares PURCHASER shall provide to ISSUER satisfactory evidence
of the availability of funds with the agents set forth in Section 14 of
this Agreement.
11. Governing Law. This Offshore Securities Deferred Subscription
Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to its choice of law principles).
12. Entire Agreement. This Offshore Securities Deferred Subscription
Agreement constitutes the entire agreement among the parties hereof
with respect to the subject matter hereof and supersedes any and all
prior or contemporaneous representations, warranties, agreement and
understandings in connection therewith. This Offshore Securities
Deferred Subscription Agreement may be amended only by a writing
executed by all parties hereto.
13. Full Name and Address of Purchaser for Registration Purposes.
NAME: PHILMONT A.V.V.
ADDRESS: Sun Plaza
306-160 Xxxxx Xxxxxx Xxxxx Blvd.
Aruba
TEL NO.: (000) 000-0000
FAX NO.: (000) 000-0000
CONTACT
NAME: XXXXXXXXX XXXXXXXX
14. Delivery instructions: (if different from Registration Name):
NAME: Citibank N.A. (London)
ADDRESS: 00 Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
FAX NO.: 0000 000 0000
NAME: PHILMONT A.V.V.
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SPECIAL
INSTRUCTIONS: Account Number: To be provided.
NUMBER
OF SHARES: 500,000
NAME: Xxxxxx Brothers
ADDRESS: 14th Floor
0000 Xxxxxxxx Xxx.
Xxxxx, XX 00000
TEL NO.: (000) 000-0000
FAX NO.: (000) 000-0000
CONTACT: Xxxxxx Xxxxxxxx
NAME: PHILMONT A.V.V. or ASSIGNEE
SPECIAL
INSTRUCTIONS: To be provided.
NUMBER OF SHARES: 500,000
15. Issuer's acceptance based upon Purchasers Representations. ISSUER
IS ACCEPTING THIS OFFSHORE SECURITIES SUBSCRIPTION BASED UPON AND IN
RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES OF PURCHASER CONTAINED
HEREIN, INCLUDING, WITHOUT LIMITATION, THOSE CONTAINED IN SECTION 2 OF
THIS AGREEMENT, AND THIS OFFSHORE SECURITIES DEFERRED SUBSCRIPTION
AGREEMENT WOULD NOT BE ACCEPTED BY ISSUER IN THE ABSENCE OF SUCH
REPRESENTATIONS AND WARRANTIES.
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IN WITNESS WHEREOF, this Offshore Securities Deferred Subscription
Agreement was duly executed on the date first written below.
Dated this 24th day of the month of January, 1996.
Company Name: AFFINITY TELEPRODUCTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
______________________________
Official Signature of Issuer
Name (Printed): Xxxxxxx X. Xxxxx
______________________________
Title: President
Country of Execution: USA
______________________________
Accepted this 24th day of the month of January, 1996.
PHILMONT A.V.V.
By: /s/ Xxxxxxxxx Xxxxxxxx
_______________________________
Official Signature of Purchaser
Name (Printed): Xxxxxxxxx Xxxxxxxx
Title: Manager
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APPENDIX "A"
PURCHASER REPRESENTATION LETTER
Dear Sirs:
The undersigned, PHILMONT A.V.V., has purchased on January , 1996, One
Million Shares of Common Stock (the "Shares") of AFFINITY TELEPRODUCTIONS, INC.
(the "Company") and, in connection with such purchase, has executed and
delivered a subscription form ("Subscription Form") of your design. P
acknowledges the Regulation S restriction and 12 month restriction against
transfer imposed.
The undersigned represents and warrants as follows:
(1) The offer to purchase the Shares was made to it outside of
the United States, and the undersigned was, at the time the
subscription form was executed and delivered, and is not
outside the United States.
(2) The undersigned is not a U.S. person (as such term is
defined in Section 902 (a) of Regulation S ("Regulation S")
promulgated under the United States Securities Act of 1933
(the "Securities Act"), and the undersigned has purchased the
Shares for the undersigned's own account and not for the
account or benefit of any U.S. person.
(3) All offers and sales by the undersigned of the shares
acquired pursuant to the Subscription Form shall be made
pursuant to an effective registration statement under the
Securities Act or pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption
form, or in a transaction not subject to the registration
requirements of the Securities Act.
(4) He or it is familiar with and understands the terms and
conditions, and requirements contained in Regulation S and
definitions of U.S. persons contained in Regulation S.
(5) The undersigned has not engaged in any "directed selling
efforts" (as such term is defined in Regulation S) with
respect to the Shares; and
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(6) The undersigned purchased the undersigned's Shares with
investment intent and presently has no interest to sell,
dispose of or otherwise transfer the Shares. The purpose for
this request is to facilitate the management of the
undersigned's investment accounts.
Dated this 24th day of the month of January, 1996.
By: /s/ Xxxxxxxxx Xxxxxxxx
_______________________________
Official Signature of Purchaser
Title: Manager
______________________________
Country of Execution: Canada
_______________
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