Amount of Debentures Subscribed for: $
Number of Warrants Issued:
▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
SUBSCRIPTION AGREEMENT
for
The Purchase of 7% Convertible Subordinated
Debentures and Warrants of the Company
A. The undersigned hereby subscribes for and agrees to purchase $ of 7%
Convertible Subordinated Debentures and warrants to purchase ___________ shares
of common stock of ▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC., a corporation organized and
existing under the laws of the State of Delaware (the "Company"). The Debentures
being offered are more fully described in the Confidential Term Sheet of the
Company dated October 15, 1996 as amended by Supplements dated October 28, 1996,
December 15, 1996 and January 8, 1997 and the Exhibits thereto, (the "Term
Sheet"). The warrants being issued pursuant to the provisions of the Term Sheet
(the "Warrants") shall each be exercisable for one share of the Company's common
stock, $.01 par value per share, at an exercise price of $1.25 per share and
shall be exercisable for a period of one year commencing on January __, 1997 and
expiring at 5:00 pm Eastern Standard Time on January __, 1998. The undersigned
shall receive one Warrant for each $2.00 invested in the Company through
purchase of the Debentures. The undersigned agrees to pay a purchase price equal
to the face value of the Debenture purchased. The undersigned herewith tenders
to the Company the entire amount of such purchase price by wire transfer or by
check made payable to the order of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
B. The undersigned acknowledges that neither the Warrants nor the Debentures
(the "Securities") have been registered under the Securities Act of 1933, as
amended (the "Act"), or the securities laws of any state (i) that absent an
exemption or registration under the Act, the Securities cannot be resold, and
(ii) the Securities are being offered for sale in reliance upon exemptions from
registration contained in the Act and applicable state laws, and that the
Company's reliance upon such exemption is based in part upon the undersigned's
representations, warranties and agreements contained in this Subscription
Agreement.
The offering (the "Offering") of Securities shall terminate on such
date as may be determined by the Company and the Placement Agent (as defined
herein) in their discretion (the "Termination Date"), unless sooner terminated
by reason of the sale of all the Securities prior to such time. The Company and
the Placement Agent have the right, in their discretion, to accept or reject any
subscription.
C. Anything herein to the contrary notwithstanding, the Company agrees to
register the shares of Common Stock issuable upon conversion or exercise of the
Securities in accordance with the following terms and conditions:
(1) The Company will within thirty (30) days of the date of this
Agreement file pursuant to the Act a registration statement on Form S-3 or
equivalent form with respect to the Company Common Stock issuable upon
conversion or exercise of the Securities, and the Company will use its best
efforts to cause such registration to become and remain effective on or before
March 26, 1997 (including the taking of such steps as are necessary to obtain
the removal of any stop order), provided that the undersigned shall furnish the
Company with appropriate information in connection therewith as the Company may
reasonably request in writing. All costs and expenses of the registration
statement shall be borne by the Company, except that the undersigned shall bear
the fees of his or her own counsel and any underwriting discounts or commissions
applicable to any of the securities sold by them. The Company shall supply
prospectuses, and such other documents as the undersigned may request in order
to facilitate the public sale or other disposition of the Company Common Stock
and use its best efforts to register and qualify any of the Company Common Stock
for sale in such states as the undersigned designates.
(2) The Company will indemnify and hold harmless each holder of the
securities covered by such registration statement, amendment or supplement (such
holder being hereinafter called the "Distributing Holder"), and each person, if
any, who controls (within the meaning of the Act) the Distributing Holder, and
each underwriter (within the meaning of the Act) of such securities and each
person, if any, who controls (within the meaning of the Act) any such
underwriter, against any losses, claims, damages or liabilities, joint or
several, to which the Distributing Holder, any such controlling person or any
such underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages, or liabilities, or actions in respect thereof, arise
out of or are based upon any untrue statement or alleged untrue statement or any
material fact contained in any such registration statement or any preliminary
prospectus or final prospectus constituting a part thereof or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to the state therein of a material fact required to be stated
therein or necessary to make the statements therein not misleading. The Company
shall reimburse the Distributing Holder or such controlling person or
underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action, provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon untrue statement or alleged untrue
statement or omission or alleged omission made in said registration statement,
said preliminary prospectus, said final prospectus or said amendment or
supplement in reliance upon and in conformity with written information furnished
by such Distributing Holder or any other Distributing Holder for use in the
preparation thereof.
(3) The Distributing Holder will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed said
registration statement and such amendments and supplements thereto, and each
person, if any, who controls the Company (within the meaning of the Act)
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against any losses, claims, damages or liabilities, joint or several, to which
the Company or any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities, or actions in respect thereof, arise out of or are based upon (i)
any untrue statement of any material fact contained in said registration
statement, said preliminary prospectus, said final prospectus, or said amendment
or supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in said registration statement, said final
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished by such Distributing Holder for use in the
preparation thereof or (ii) the Distributing Holder's failure to deliver a
prospectus as required under applicable federal or state securities laws. The
Distributing Holders shall reimburse the Company or any such director, officer
or controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action.
(4) Promptly after receipt by an indemnified party under this Section C
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party, give the
indemnifying party notice of the commencement thereof, but the omission so to
notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section C.
(5) In case any such action is brought against any indemnified party,
and it notified an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in and, to the extent that it
may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section C for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(6) The obligations of the Company under this Section C to register the
Company Common Stock shall expire and terminate on the earlier of (i) two years
from the Termination Date or (ii) at such time as the Distributing Holder shall
be entitled to sell such securities without restriction and without a need for
the filing of a registration statement under the Act, including, without
limitation, for any resales of "Restricted Securities" made pursuant to Rule 144
as promulgated by the SEC, or a sale made pursuant to Sections 4(1) and/or 4(2)
under the Act.
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(7) In the event that the registration statement referenced in
paragraph (C)(1) is not declared effective by the Commission on or before March
26, 1997, and provided that the undersigned is not a U.S. Person as that term is
defined under Regulation S of the Act, the undersigned, may at its option, (a)
convert the principal amount and accrued interest of the Debenture into shares
of Company Common Stock in accordance with the terms of the Debenture and (b)
exercise the Warrants in accordance with the terms thereof. Such shares will be
deemed to have been issued pursuant to Regulation S and shall be transferable in
accordance with the provisions of Regulation S and paragraph 8 below.
(8) Upon the conversion of any Debenture or the exercise of any Warrant
by a person who is a non-U.S. Person, the Company shall instruct its transfer
agent to issue certificates without restrictive legend in the name of the
undersigned (or its nominee (being a non-U.S. Person) or such non-U.S. Person as
may be designated by the undersigned prior to the closing) and in such
denominations to be specified at conversion or exercise representing the number
of shares of Common Stock issuable upon such conversion or exercise, as
applicable. The Company warrants that no instructions other than these
instructions and instructions to impose a "stop transfer" instruction with
respect to the certificates until the end of the Restricted Period have been
given or will be given to the transfer agent and that the Common Stock shall
otherwise be freely transferable on the books and records of the Company.
Nothing in this paragraph 8, however, shall affect in any way the undersigned's
or such nominee's obligations and agreements to comply with all applicable
securities laws upon resale of the Securities.
D. If at any time within two (2) weeks of the date of this Agreement, the
Company seeks to sell for cash any shares of its Common Stock or its promissory
notes to a third party, the Company shall provide the undersigned with notice of
same. The undersigned shall have the right within five (5) business days of its
receipt of the notice pursuant to this provision to purchase an amount of
Debentures and Warrants equal to the amounts subscribed for hereunder with the
same terms and conditions as set forth herewith.
E. In order to induce the Company to accept this Subscription Agreement, the
undersigned represents and warrants to the Company and ▇.▇. ▇▇▇▇▇▇ & Co., Inc.
(the "Placement Agent") as follows:
(l) The undersigned understands that (i) this Subscription Agreement
may be accepted or rejected in whole or in part in the discretion of the Company
or the Placement Agent, and (ii) this Subscription Agreement, unless properly
revoked before acceptance, shall survive the undersigned's death, disability or
insolvency, except that the undersigned shall have no obligations in the event
that this Subscription Agreement is rejected by the Company. In the event that
the Company does not accept the undersigned's subscription, or if the Offering
is terminated for any reason, the undersigned's payment will be returned to him
without interest or deduction.
(2) The undersigned has read carefully this Subscription Agreement and
the Term Sheet (including the Exhibits annexed thereto) and, to the extent
necessary, has discussed the representations, warranties and agreements which
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the undersigned makes by signing it, and the applicable limitations upon the
undersigned's resale of the Securities with his or its counsel.
(3) The undersigned understands that no federal or state agency has
made any finding or determination regarding the fairness of the offering of the
Securities, or any recommendation or endorsement of the offering of the
Securities. Any representation to the contrary is a criminal offense.
(4) The undersigned is purchasing the Securities for the undersigned's
own account, with the intention of holding the Securities for investment
purposes, with no present intention of dividing or allowing others to
participate in this investment or of reselling or otherwise participating,
directly or indirectly, in a distribution of the Securities; and shall not make
any sale, transfer or other disposition of the Securities without registration
under the Act and applicable state securities laws unless an exemption from
registration is available under those laws.
(5) The undersigned's overall commitment to investments which are not
readily marketable is not disproportionate to the undersigned's net worth, and
the undersigned's investment in the Securities will not cause such overall
commitment to become excessive.
(6) The undersigned, if an individual, has adequate means of providing
for his current needs and personal and family contingencies and has no need for
liquidity in his investment in the Securities.
(7) The undersigned is an "accredited investor" as that Term is defined
in Section 501(a) under Regulation D promulgated by the Securities and Exchange
Commission under the Act which definition is attached hereto. The undersigned is
financially able to bear the economic risk of this investment, including the
ability to afford holding the Securities for an indefinite period or to afford a
complete loss of this investment.
(8) The address shown under the undersigned's signature at the end of
this Subscription Agreement is the undersigned's principal residence if he is an
individual, or its principal business address if a corporation or other entity.
(9) The undersigned, together with any purchaser representatives of the
undersigned (as identified herein) has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Securities.
(10) The undersigned has received and read the Term Sheet.
(11) The undersigned has been given the opportunity to ask questions of
and receive answers from the Company concerning the terms and conditions of the
Offering and to obtain additional information necessary to verify the accuracy
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of the information contained in the Term Sheet or such other information as the
undersigned desired in order to evaluate the investment, and the undersigned
availed itself of such opportunity to the extent considered appropriate in order
to evaluate the merits and risks of the proposed investment. Notwithstanding the
foregoing, the only information upon which the undersigned has relied in making
the investment decision is that set forth in the Term Sheet and the exhibits
thereto. The undersigned acknowledges that the undersigned has received no
representations or warranties from the Company and its employees or the
Placement Agent and its employees other than as set forth in the Term Sheet.
(12) The undersigned has made an independent evaluation of the merits
of the investment and acknowledges the high risk nature of the investment.
(13) The undersigned has accurately completed the Qualified Purchaser
Questionnaire provided herewith and has executed such Qualified Purchaser
Questionnaire and any applicable exhibits thereto.
(14) The undersigned understands that even if the Company is a
"reporting company" under the Securities Exchange Act of 1934, as amended, the
provisions of Rule 144 promulgated under the Act to permit resales of the
Securities are not available for at least two (2) years from the date the
Securities are paid for and accepted, there can be no assurance that the
conditions necessary to permit routine sales of the Securities under Rule 144
will ever be satisfied, that such sales required that the Company be current in
filing periodic reports under the Securities Exchange Act of 1934, and, if Rule
144 should become available, sales made in reliance on its provisions could be
made only in limited amounts and in accordance with the terms and conditions of
the Rule. The undersigned further understands that in connection with the sale
of securities for which Rule 144 is not available, compliance with some other
registration exemption will be required. The undersigned understands that,
except as set forth in this Subscription Agreement, the Company is under no
obligation to the undersigned to register the Securities or to comply with the
conditions of Rule 144 or take any other action necessary in order to make
available any exemption for the resale of the Securities without registration.
(15)(a) The undersigned understands that as of the date of this
agreement, none of the Securities have been registered under the Act, or any
state securities laws in reliance on exemptions for private offerings; the
Securities cannot be resold or otherwise disposed of unless they are
subsequently registered under the Act and applicable sate securities laws or an
exemption from registration is available. The certificate(s) representing the
Securities will bear the following legend until (i) such securities shall have
been registered under the Act and effectively disposed of in accordance with the
registration statement; or (ii) such Securities may be sold pursuant to an
exemption from the registration requirements of the Act:
"THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY, HAVE NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE"1933 ACT"),
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AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES (AS DEFINED IN
REGULATIONS OF THE 1933 ACT) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS (AS DEFINED IN REGULATION S OF THE 1933 ACT) EXCEPT PURSUANT TO
REGISTRATION UNDER OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
1933 ACT."
(b) The undersigned understands that in the absence of registration by
the Company, the Securities will not be, and the undersigned will have no rights
to require that the Securities be registered under the 1933 Act or any state
securities laws; there will be no public market for the Securities and there is
no assurance one will develop in the future; the undersigned may have to hold
the Securities indefinitely and it may not be possible for the undersigned to
liquidate its investment in the Company; and the undersigned should not purchase
any Securities unless it can afford a complete loss of its investment and bear
the burden of such loss for an indefinite period of time.
(16) In the event that the undersigned is not a U.S. Person (as defined
in Section 902(o) of Regulation S of the Act, it hereby acknowledges the
additional representations in Exhibit A attached hereto.
F. If at any time prior to acceptance of the subscription for the
Securities of the undersigned, any representation or warranty of the undersigned
shall no longer be true, the undersigned promptly shall give written notice to
the Company and the Placement Agent specifying which representations and
warranties are not true and the reason therefor, whereupon the undersigned's
subscription may be rejected.
G. The Company represents and warrants to the undersigned as follows:
(a) The Company has registered its Common Stock pursuant to Section 12
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
Common Stock is listed and trades on NASDAQ. Seller has filed all material
required to be filed pursuant to all reporting obligations under either Section
13(a) or 15(d) of the Exchange Act for a period of at least twelve (12) months
immediately preceding the offer or sale of the Securities (or for such shorter
period that Seller has been required to file such material).
(b) The Company has furnished the undersigned with copies of its most
recent reports, as amended, filed under the Exchange Act referred to in
paragraph (a) above, and such other publicly available documents as requested by
the undersigned.
(c) The issuance, sale and delivery of the Securities have been duly
authorized by all required corporate action on the part of the Company, and when
issued, sold and delivered in accordance with the terms hereof and thereof for
the consideration expressed herein and therein, will be duly and validly issued,
fully paid and non-assessable. The Common Stock issuable upon conversion of the
Debentures and exercise of the Warrants, as applicable, has been duly and
validly reserved for issuance and, upon issuance in accordance with the
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respective terms of the Securities shall be duly and validly issued, fully paid,
and non-assessable and will not subject the holders thereof, if such persons are
non- U.S. persons, to personal liability by reason of being such holders. There
are no pre-emptive rights of any shareholder of the Company.
(d) This Agreement has been duly authorized, validly executed and
delivered on behalf of the Company and is a valid and binding agreement in
accordance with its terms, subject to general principals of equity and to
bankruptcy or other laws affecting the enforcement of creditors' rights
generally.
(e) The execution and delivery of this Agreement and the consummation
of the issuance of the Securities and the transactions contemplated by this
Agreement do not and will not conflict with or result in a breach by the Company
of any of the terms or provisions of, or constitute a default under, the
Certificate of Incorporation or By-laws of the Company, or any indenture,
mortgage, deed of trust, or other material agreement or instrument to which the
Company is a party or by which it or any of its properties or assets are bound,
or any existing applicable law, rule or regulation of the United States or any
State thereof or any applicable decree, judgment or order of any Federal or
State court, Federal or State regulatory body, administrative agency or other
United States governmental body having jurisdiction over the Company or any of
its properties or assets.
(f) The Company is not aware of any authorization, approval or consent
of any governmental body which is legally required for the issuance and sale of
the Securities and the Common Stock issuable upon conversion or exercise thereof
to persons who are non- U.S. Persons, as contemplated by this Agreement.
H. Notwithstanding the place where this Subscription Agreement may be
executed by any of the parties hereto, all the terms and provisions hereof shall
be construed in accordance with and governed by the laws of The Commonwealth of
Massachusetts, without giving effect to its conflict of law principles. Any
dispute which may arise out of or in connection with this Subscription Agreement
shall be adjudicated before a court located in The Commonwealth of Massachusetts
and the parties hereby submit to the exclusive jurisdiction of the courts of The
Commonwealth of Massachusetts and of the federal courts in The Commonwealth of
Massachusetts with respect to any action or legal proceeding commenced by any
party, and irrevocably waive any objection they now or hereafter may have
respecting the venue of any action or proceeding brought in such a court or
respecting the fact that such court is an inconvenient forum, relating to or
arising out of this Subscription Agreement or any acts or omissions relating to
the sale of the Securities, and the undersigned consents to the service of
process in any such action or legal proceeding by means of registered or
certified mail, return receipt requested, in care of the address set forth below
or such other address as the undersigned shall furnish in writing to the Company
and the Placement Agent.
I. The undersigned hereby waives trial by jury in any action or
proceeding involving, directly or indirectly, any matter (whether sounding in
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tort, contract, fraud or otherwise) in any way arising out of or in connection
with this Subscription Agreement or the undersigned's purchase of the
Securities.
J. The undersigned acknowledges that he understands the meaning and
legal consequences of the representations, warranties and acknowledgments
contained in this Subscription Agreement and in the Qualified Purchaser
Questionnaire, and hereby agrees to indemnify and hold harmless the Company and
the Placement Agent, and their respective shareholders, officers, directors,
affiliates, "controlling persons", agents and representatives, from and against
any and all loss, damage, expense, claim, action, suit or proceeding (including
the reasonable fees and expenses of legal counsel) as incurred arising out of or
in any manner whatsoever connected with a breach of any representation or
warranty of the undersigned contained in this Subscription Agreement or in the
Qualified Purchaser Questionnaire. The undersigned acknowledges that such damage
could be substantial since (a) the Securities are being offered without
registration under the Act in reliance upon the exemption pursuant to Section
4(2) of the Act for transactions by an issuer not involving a public offering
and, in various states, pursuant to exemptions from registration, (b) the
availability of such exemptions is, in part, dependent upon the truthfulness and
accuracy of the representations made by the undersigned herein and in its
Qualified Purchaser Questionnaire, and (c) the Company will rely on such
representations in accepting the undersigned's Subscription Agreement.
K. Except as expressly provided herein, this Subscription Agreement
contains the entire agreement between the parties with respect to the
transactions contemplated hereunder and may be amended only by a writing
executed by all of the parties hereto. This Subscription Agreement supersedes
all prior arrangements or understandings with respect thereto, whether verbal or
written. The terms and conditions of this Subscription Agreement shall inure to
the benefit of and be binding upon the parties and their respective successors,
heirs and assigns.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement on this _______ day of ______________, 1997.
$
Debentures Subscribed For Warrants Subscribed for
Manner in which Title is to be held (Please Check One):
1. / / Individual 7. / / Trust/Estate/Pension or Profits
Sharing Plan
Date Opened:
2. / / Joint Tenants With 8. / / As a Custodian for
Right of Survivorship
3. / / Community Property
Under the Uniform Gift to Minors
Act of the State of
4. / / Tenants in Common
5. / / Corporate/Partnership 9. / / Married with Separate Property
6. / / IRA 10. / / ▇▇▇▇▇
INDIVIDUAL SUBSCRIBERS MUST COMPLETE PAGE 11.
SUBSCRIBERS THAT ARE ENTITIES MUST COMPLETE PAGE 12.
Name of Purchaser
Registered Representative
Please indicate whether or not you or any member of your immediate family
is affiliated with any member of the National Association of Securities Dealers,
Inc. A member of your immediate family includes parents, mother-in-law,
father-in-law, husband or wife, brother or sister, brother-in-law or
sister-in-law, son-in-law, daughter-in-law and children and any other person who
is supported, directly or indirectly to a material extent by the subscriber.
Check One: / / No Affiliates / / Affiliated with (explain)
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EXECUTION BY SUBSCRIBER WHO IS A NATURAL PERSON
Exact Name in Which Title is to be Held
(Signature)
(If joint Tenant or Tenants in Common, both persons must sign and this page must
contain all information for both persons).
Name (Please Print)
Residence: Number and Street
City State Zip Code
Telephone Number
Social Security Number
ACCEPTED this day of , 1997, on behalf of the Company.
▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
By:
Name:
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EXECUTION BY SUBSCRIBER THAT IS AN ENTITY
(Corporation, Partnership, Trust, Etc.)
Name of Entity (Please Print)
Address of Principal Office of Entity
(seal) BY:
TITLE:
Attest:
(If Entity is a Corporation)
Address
Telephone Number
Taxpayer Identification Number
ACCEPTED, this day of , 1997, on behalf of the Company.
▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
By:
Name:
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EXHIBIT A
▇▇▇▇▇▇▇▇ TECHNOLOGIES, INC.
ADDITIONAL REPRESENTATIONS MADE BY NON-U.S. PERSONS
In connection with the purchase and sale of the Debentures and the
Warrants, the Undersigned represents and warrants to, and covenants and agrees
with the Company as follows:
1. The Undersigned is not a natural person and is not organized under
the laws of any jurisdiction within the United States, was not formed by a U.S.
Person (as defined in Section 902(o) of Regulation S) for the purpose of
investing in Regulation S securities and is not otherwise a U.S. Person. The
Undersigned is not, and on the closing date will not be an affiliate of the
Company;
2. At the time the buy order was originated, the Undersigned was
outside the United States and is outside of the United States as of the date of
the execution and delivery of this Agreement;
3. No offer to purchase the Debentures, the Warrants or the common
stock of the Company issuable upon conversion of the Debentures or exercise of
the Warrants (collectively, the "Securities"), was made by the Undersigned in
the United States;
4. The Undersigned is purchasing the Securities for its own account and
the Undersigned is qualified to purchase the Securities under the laws of its
jurisdiction of residence, and the offer and sale of the Securities will not
violate the securities or other laws of such jurisdiction;
5. All offers and sales of any of the Securities by the Undersigned
prior to the end of the Restricted Period (as hereinafter defined) shall be made
in compliance with any applicable securities laws of any applicable jurisdiction
and in accordance with Rule 903 and 904, as applicable, of Regulation S or
pursuant to registration of securities under the 1933 Act or pursuant to an
exemption from registration. In any case, none of the Securities have been and
will be offered or sold by the Undersigned to, or for the account or benefit of,
a U.S. Person or within the United States until after March 25, 1997 (the
"Restricted Period"), as certified by the Undersigned to the Company, and
thereafter only pursuant to a Registration Statement or an applicable exemption
therefrom;
6. The transactions contemplated by this Agreement (a) have not been
and will not be pre-arranged by the Undersigned with a purchaser located in the
United States or a purchaser which is a U. S. Person, and (b) are not and will
not be part of a plan or scheme by the Undersigned, to evade the registration
provisions of the 1933 Act;
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7. The Undersigned understands that the Securities are not registered
under the 1933 Act and are being offered and sold to it in reliance on specific
exclusions from the registration requirements of Federal and State securities
laws, and that the Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings of
the Undersigned set forth herein in order to determine the applicability of such
exclusions and the suitability of the Undersigned and any purchaser from the
Undersigned to acquire the Securities;
8. The Undersigned shall take all reasonable steps to ensure its
compliance with Regulation S and shall promptly send to each purchaser who acts
as a distributor, dealer or a person receiving a selling concession, fee or
other remuneration in respect of any of the Securities, who purchases prior to
the expiration of the Restricted Period referred to in subparagraph (v) above, a
confirmation or other notice to the purchase stating that the purchaser is
subject to the same restrictions on offers and sales as the Undersigned pursuant
to Section 901(c)(2)(iv) of Regulation S;
9. The Undersigned has not conducted and shall not conduct any
"directed selling efforts" as that term is defined in Rule 902(b) of Regulation
S; nor has the Undersigned conducted any general solicitation relating to the
offer and sale of any of the Securities in the United States or elsewhere;
10. This Agreement has been duly authorized, validly executed and
delivered on behalf of the Undersigned and is a valid and binding agreement in
accordance with its terms, subject of general principals of equity and to
bankruptcy or other laws affecting the enforcement of creditors' rights
generally;
11. The execution and delivery of this Agreement and the consummation
of the purchase of the Securities, and the transactions contemplated by this
Agreement do not and will not conflict with or result in a breach by the
Undersigned of any of the terms or provisions of, or constitute a default under,
the articles of incorporation or by-laws (or similar constitutive documents) of
the Undersigned of any indenture, mortgage, deed of trust, or other material
agreement or instrument to which the Undersigned is a party or by which it or
any of its properties or assets are bound, or any existing applicable law, rule
or regulation of the United States or any State thereof or any applicable
decree, judgment or order of any Federal or State court, Federal or State
regulatory body, administrative agency or other United States governmental body
having jurisdiction over the Undersigned or any of its properties or assets;
12. All invitations, offers and sales or in respect of, any of the
Securities, by the Undersigned and any distribution by the Undersigned of any
documents relating to any offer by it of any of the Securities will be in
compliance with applicable laws and regulations and will be made in such a
manner that no prospectus need be filed and no other filing need be made by the
Company with any regulatory authority or stock exchange in any country or any
political sub-division of any country;
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13. The Undersigned will not make any offer or sale of the Securities
by any means which would not comply with the laws and regulations of the
territory in which such offer or sale takes place or to which such offer or sale
is subject or which would in connection with any such offer or sale impose upon
the Company any obligation to satisfy any public filing or registration
requirement or provide or publish any information of any kind whatsoever or
otherwise undertake or become obligated to do any act; and
14. Neither the Undersigned nor any of its affiliates has entered, has
the intention of entering, or will during the Restricted Period enter into any
put option, short position or other similar instrument or position with respect
to any of the Securities or securities of the same class as the Securities.
ACKNOWLEDGED AND AGREED BY PURCHASER:
Signature
Printed Name & Title (if applicable)
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