CALIFORNIA CAPITAL INVESTORS, LLC (a Delaware Limited Liability Company) SUBSCRIPTION AGREEMENT

Transcription

1 CALIFORNIA CAPITAL INVESTORS, LLC (a Delaware Limited Liability Company) SUBSCRIPTION AGREEMENT To: John R. Nelson, Managing Member California Capital Investors, LLC 700 East Redlands Boulevard, #105 Redlands, CA Ladies and Gentlemen: Pursuant to this Subscription Agreement (the Agreement ), the undersigned hereby subscribes for an investment interest in California Capital Investors, LLC, a Delaware limited liability company (the Company ). 1. Subscription and Payment of Capital Commitment Amount. Subject to the terms and conditions hereof, the undersigned hereby subscribes to acquire a limited partnership interest in the Company (the Interest ), with a Capital Commitment in the Company as set forth on the signature page hereof. The Interest shall carry the rights and obligations as set forth in the terms of the Company s Operating Agreement, expected to be dated October, 2006, as it may be amended from time to time (the Company Agreement ) a copy of which will be provided to the undersigned prior to closing of the Interest (the Closing ). Following acceptance of the subscription by the Managing Members, the undersigned shall contribute capital to the Company in respect of its respective Capital Commitment at such times and in such amounts as set forth in the Company Agreement. THE INVESTMENT INTEREST REFERRED TO IN THIS SUBSCRIPTION AGREEMENT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE 1933 ACT ) AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT COVERING SUCH INVESTMENT INTEREST OR THE PARTNERSHIP RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO THE GENERAL PARTNER STATING THAT SUCH SALE, TRANSFER ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE 1933 ACT. TRANSFER OF THE LIMITED PARTNERSHIP INTEREST IS ALSO RESTRICTED BY THE TERMS OF THE LIMITED PARTNERSHIP AGREEMENT RELATED THERETO. 2. Acceptance of Agreement. It is understood and agreed that this Agreement is made subject to the following terms and conditions: 1

2 (a) The Managing Members shall have the right to accept or reject this Subscription, in whole or in part, in its sole and absolute discretion. (b) The Managing Members reserve the right to review the suitability of any person (or entity) desiring to purchase a limited partnership interest in the Company, and, in connection with such review, to waive such suitability standards as to such person (or entity) as the Managing Members may deem appropriate. 3. Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to the Managing Members and the Company as follows: (a) The undersigned is acquiring the Interest solely for its own account for investment and not with a view to distribution or resale. The undersigned will not sell, hypothecate, pledge or otherwise dispose of the Interest in whole or in part except in compliance with the Company Agreement and unless the Interest has been registered under the Securities Act of 1933, as amended (the Securities Act ), and any applicable state securities law, or is exempt from registration requirements of the Securities Act and any such state securities law. (b) The undersigned has sufficient knowledge and experience in business and financial matters to evaluate the Company, its proposed activities and the risks and merits of this investment. The undersigned has the ability to accept the high risk and lack of liquidity inherent in this type of investing. (c) The undersigned recognizes that investments in the Company involve certain risks and the undersigned has reviewed and understands all of the risk factors related to the purchase of the Interest, including those set forth in the Company s Private Placement Memorandum dated October 20, 2006, and any and all supplements thereto (collectively, the Memorandum ). The undersigned acknowledges that the Company has no operating history. (d) The undersigned has received and read the Memorandum relating to the formation and activities of the Company and is not relying on any information obtained about the Company prior to receipt of the Memorandum. The undersigned acknowledges that the terms of his investment in the Company will be as provided in the Company Agreement, which will supersede any summary or description included in the Memorandum. The undersigned has received, read, and fully understands this Memorandum and all Exhibits thereto, and is basing his decision to invest on the Memorandum and all Exhibits thereto. The undersigned has relied on the information contained in said materials and has not relied upon any representations made by any other person. The undersigned understands that an investment in the Units involves substantial risks and is fully cognizant of, and understands, all of the risk factors relating to a purchase of the Units, including, without limitation, those risks set forth below in the section entitled RISK FACTORS and CONFLICTS OF INTEREST. The undersigned s overall commitment to investments that are not readily marketable is not disproportionate to his individual net worth, and his investment in the Investor Units will not cause such overall commitment to become excessive; and the undersigned has adequate means of providing for his financial requirements, both current and anticipated, and has no need for liquidity in this investment; and the undersigned can bear, and is willing to accept, the economic risk of losing his entire investment in the Units. 2

3 (e) The undersigned has had the opportunity to ask questions of and receive answers from the Managing Members concerning the terms, conditions and proposed activities of the Company and to obtain any additional information necessary to verify the accuracy of the information provided. (f) The undersigned has been advised to consult with its own attorney regarding legal matters concerning the Company and to consult with an independent tax adviser regarding the tax consequences of participating in the Company. (g) The undersigned hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, the undersigned hereby represents, warrants and agrees that, to the best of the undersigned s knowledge based upon reasonable and appropriate diligence and investigation: (i) none of the cash or property that the undersigned has paid, will pay or will contribute to the Company has been or shall be derived from, or related to, any activity that is deemed criminal under United States law; and (ii) no contribution or payment by the undersigned to the Company, to the extent that they are within the undersigned s control, shall cause the Company or the Managing Members to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, and any regulations promulgated thereunder. The undersigned shall promptly notify the Managing Members if any of these representations cease to be true and accurate regarding the undersigned. The undersigned agrees to provide to the Managing Members any additional information regarding the undersigned that the Managing Members deem necessary or convenient to ensure compliance with all applicable laws and regulations concerning money laundering and similar activities. The undersigned understands and agrees that if at any time it is discovered that any of the foregoing representations are incorrect, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the Managing Members may undertake appropriate actions to ensure compliance with applicable law or regulation, including, but not limited to segregation and/or redemption of the undersigned s investment in the Company. The undersigned further understands that the Company or the Managing Members may release confidential information about the undersigned and, if applicable, any underlying beneficial owners, to proper authorities if the Managing Members, in their sole discretion, determines that it is in the best interest of the Company in light of relevant rules and regulations under the laws set forth in subsection (ii) above. (h) The undersigned understands that the Interest has not been registered under the Securities Act (and that no such registration is contemplated) and is being sold in reliance upon the exemption from registration requirements under the Securities Act provided in Regulation D and/or Section 4(2). The undersigned further understands that it is not anticipated that there will be any market for its Interest in the Company and the undersigned must therefore bear the economic risk of this investment for the term of the Company. The undersigned acknowledges that transfer of the Interest is restricted by state and federal securities laws, and that further restrictions on transfer will be contained in the Company Agreement. 3

4 (i) The undersigned makes one of the following representations regarding its status as an accredited investor and certain related matters, and has checked the applicable representation(s). Please check the applicable box: (i) The undersigned is a trust with total assets in excess of $5,000,000 whose purchase is directed by a person with such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment. (ii) The undersigned is a bank, insurance company, investment company registered under the Investment Company Act of 1940, as amended (the Investment Company Act ), a broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, a business development Company, a Small Business Investment Company licensed by the U.S. Small Business Administration, a plan with total assets in excess of $5,000,000 established and maintained by a state for the benefit of its employees, or a private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of (iii) The undersigned is an employee benefit plan and either all investment decisions are made by a bank, savings and loan association, insurance company, or registered investment advisor, or the undersigned has total assets in excess of $5,000,000 or, if such plan is a self-directed plan, investment decisions are made solely by persons who are accredited investors. (iv) The undersigned is (i) an organization described in Section 501(c)(3) of the Internal Revenue Code, or (ii) a corporation, partnership, limited liability company or business trust, in either case with total assets in excess of $5,000,000. (v) If the undersigned is an entity but is not an entity described in the preceding paragraphs (i) through (iv), the undersigned represents that each of its equity owners is either (i) an entity described in paragraphs (ii) through (iv) ; or (ii) an individual who (A) has an individual net worth, or a joint net worth with such individual s spouse, in excess of $1,000,000, or (B) has had an individual income in excess of $200,000 in each of the two most recent years, or a joint income with one s spouse in excess of $300,000 in each of those years, and has a reasonable expectation of reaching the same income level in the current year, or (C) is a manager or executive officer of the Company. (vi) If the undersigned is an individual, a self-directed IRA or a living trust, the undersigned represents that it (A) has an individual net worth, or a joint net worth with such individual s spouse, in excess of $1,000,000, or (B) has had an individual income in excess of $200,000 in each of the two most recent years, or a joint income with one s spouse in excess of $300,000 in each of those years, and has a reasonable expectation of reaching the same income level in the current year, or (C) is a manager or executive officer of the Managing Members. (vii) The undersigned cannot make any of the representations set forth in paragraphs (i) through (vi) above. 4

5 (j) The undersigned maintains its domicile at the address shown on the Subscription Agreement Signature Page hereof and is not merely transient or temporarily resident there. (k) The undersigned represents to the Managing Members and the Company that the undersigned neither has acquired nor will transfer or assign any Interest, or cause any Interest to be marketed on or through an established securities market within the meaning of Section 7704(b)(1) of the Internal Revenue Code of 1986, or a secondary market (or the substantial equivalent thereof ) within the meaning of Section 7704(b)(2) of the Internal Revenue Code of 1986, as amended, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. Further, the undersigned agrees that if the undersigned determines to transfer or assign any Interest pursuant to the provisions hereof and of the Company Agreement, the undersigned will cause the proposed transferee to agree to the transfer restrictions and to make the representations set forth herein. (l) The undersigned agrees to be bound by all of the terms and conditions of the Company Agreement and to perform all obligations thereby imposed upon it. (m) The undersigned has full power and authority to make the representations contained in this Agreement, to purchase the Interest pursuant to this Agreement and the Company Agreement and to deliver the Company Agreement and this Agreement. The Company Agreement and this Agreement create valid and binding obligations of the undersigned and are enforceable against the undersigned in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance. 4. Indemnity. The undersigned agrees to indemnify and hold harmless the Managing Members and the Company, and each other person, if any, who controls any such entity within the meaning of Section 15 of the Securities Act against any and all loss, liability, claim, damages and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any breach or failure by the undersigned to comply with any representation, warranty, covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this Agreement. 5. No Revocation. The undersigned agrees that this Agreement is irrevocable and shall survive the dissolution, termination, liquidation, death or disability of the undersigned. 6. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which taken together shall constitute one Agreement. 7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to conflicts of laws principles or to the domicile or residence of any party. THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, INCLUDING THE INFORMATION SET FORTH ON THE FOLLOWING SIGNATURE PAGE, ARE TRUE AND ACCURATE AS OF THE DATE HEREOF AND SHALL BE TRUE AND ACCURATE AS OF THE DATE OF SALE OF THE INTEREST AND SHALL SURVIVE SUCH DATE. IF IN ANY RESPECT SUCH REPRESENTATIONS AND WARRANTIES SHALL NOT BE TRUE AND ACCURATE PRIOR TO SALE OF THE INTEREST, THE UNDERSIGNED SHALL GIVE IMMEDIATE 5

6 NOTICE OF SUCH FACT TO THE MANAGING MEMBERS, SPECIFYING WHICH REPRESENTATIONS AND WARRANTIES ARE NOT TRUE AND ACCURATE AND THE REASONS THEREFOR. [SIGNATURE PAGE FOLLOWS; PLEASE COMPLETE] 6

7 SUBSCRIPTION AGREEMENT SIGNATURE PAGE LEGAL NAME OF INVESTOR: Type of Investor: Please check the applicable box: Individual Trust Corporation Other Company The undersigned is either (i) an employee benefit plan as defined in 3(3) of the Employee Retirement Income Security Act of 1974, as amended ( ERISA ) (including any plan that is exempt from Title I of ERISA pursuant to 4(b) of ERISA), (ii) a plan described in IRC 4975(e)(1) (including an individual retirement account or annuity), or (iii) any entity the underlying assets of which are deemed to include plan assets under ERISA. Yes, the undersigned is one of the above. No, the undersigned is not any of the above. Name and Address of primary contact person: Telephone Number: ( ) Fax Number: ( ) Address: Please specify your Tax I.D. Number or Check the appropriate box: Tax I.D. No.: Exempt Under IRC 401(a) Exempt under IRS 501(c)(3) Total Capital Commitment to Company: $ Investor Name By: Signature Title: Date: The foregoing subscription is accepted as of this day of, California Capital Investors, LLC By: John R. Nelson, Managing Member By: Signature 7