IPO Database Sample: Selling Stockholder Questionnaire

Transcription

1 IPO Database Sample: Selling Stockholder Questionnaire Name [Company] Questionnaire for Selling Stockholders in Connection with Public Offering As you know, [Company] (the Company ) is planning to make a public offering of shares of its common stock (the Public Offering ). Under the Securities Act of 1933, the Company is required to register the shares to be offered in the Public Offering with the Securities and Exchange Commission ( SEC ) by filing a registration statement on Form S-1 (the Registration Statement ). The Registration Statement requires the disclosure of certain information concerning the stockholders selling shares of Common Stock in the Public Offering. This Questionnaire is being distributed to obtain such information. Please note that certain terms, not otherwise defined in this Questionnaire, are defined in the section titled Definitions at the end of this Questionnaire and you should refer to those defined terms when completing this Questionnaire. Please complete and return one copy of this Questionnaire no later than [date] to: [Contact Information] Please answer each question completely, indicating Pone or not applicable where appropriate. Where insufficient space is provided for an answer, please attach a separate sheet referring to the question by number. Please review the questions with care and do not hesitate to contact if you are unsure how to answer any question or if you desire additional information. Unless otherwise indicated, answers should be given as of the date you complete the Questionnaire. You are reminded that sales under the Registration Statement may be made only after the Registration Statement has been declared effective by the SEC. The term Shares means the common stock of the Company. (1) Name and Contact Information: Full legal name of record holder of Shares: Address of record holder: Social Security Number or Taxpayer identification number of record holder:

2 Identity of beneficial owner (if different than record holder): Name of contact person: Telephone number of contact person: Fax number of contact person: address of contact person: (2) Beneficial Ownership of Shares: (a) Number of Shares owned by Selling Stockholder: (b) Maximum number of Shares requested to be sold on account of the Selling Stockholder: (i) Are the above Shares (please check one): Owned both of record and beneficially Owned of record only Owned beneficially only (c) Number of Shares to be owned after the Public Offering: (i) Are the above Shares (please check one): Owned both of record and beneficially Owned of record only Owned beneficially only (3) Beneficial Ownership of Other Securities of the Company Owned by the Selling Stockholder: Except as set forth below in this Item (3), the undersigned is not the beneficial or registered owner of any securities of the Company other than the Shares listed above in Item (2)(a). Type and amount of other securities beneficially owned by the Selling Stockholder (do

3 not list the common stock that you already listed in Section 2(a)): (4) Relationships with the Company: Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years. State any exceptions here: Except as set forth below, the Selling Stockholder is not an associate or affiliate of another person or company named as a 5% stockholder under the section entitled Principal and Selling Stockholders of the Registration Statement enclosed herewith. State any exceptions here (include the material facts of the relationship, including any basis for influence over the Company held by the person or company other than the holding of voting securities of the Company): (5) Selling Stockholder Affiliations: (a) Is the Selling Stockholder a registered broker-dealer? (b) Is the Selling Stockholder an affiliate of a registered broker-dealer(s)? (c) If the answer to Item (6)(b) is yes, identify the registered broker-dealer(s) and describe the nature of the affiliation(s):

4 (d) If the answer to Item (6)(b) is yes, did the Selling Stockholder acquire the Shares in the ordinary course of business (if not, please explain)? (e) If the answer to Item (6)(b) is yes, did the Selling Stockholder, at the time of purchase of the Shares, have any agreements, plans or understandings, directly or indirectly, with any person to distribute the Shares (if yes, please explain)? Note: If the Selling Stockholder is an affiliate of a broker-dealer and did not purchase its Shares in the ordinary course of business or at the time of the purchase had any agreements, plans or understandings, directly or indirectly, with any person to distribute the Shares, the Company may be required to identify the Selling Stockholder as an underwriter in the Registration Statement, any amendments thereto and the related prospectus. (6) Voting or Investment Control over the Shares: If the Selling Stockholder is not a natural person (e.g., if the holder is an entity such as a trust, corporation, partnership, etc.), please identify the natural person or persons who have voting or investment control over the Shares listed in Item (2) above: Please indicate whether any of the Shares to be sold are subject to a voting trust, and if so, please provide a copy of the voting trust agreement along with this Questionnaire: The undersigned hereby acknowledges receipt of the Registration Statement enclosed herewith and confirms that the undersigned has reviewed such draft and will review all subsequent amendments and drafts as and when they become publicly available on EDGAR or otherwise, including, without limitation, the sections captioned Principal and Selling Stockholders and Underwriting, and confirms that, to the best of the undersigned s knowledge, the same is true, complete and accurate with respect to the undersigned in every respect except as indicated in this Questionnaire. The undersigned hereby further: (i) confirms to the several underwriters the accuracy of the information concerning the undersigned contained in this Selling Stockholder s Questionnaire furnished by the undersigned

5 to the Company for purposes of the Registration Statement and the prospectus (preliminary or final) contained therein or in any amendment or supplement thereto or any documents incorporated by reference therein; (ii) represents and warrants that the Registration Statement and the prospectus (preliminary or final) contained therein does not omit a material fact concerning the undersigned required to be stated therein or necessary to make the statements therein not misleading; (iii) agrees with the Company and the several underwriters immediately to notify the Company and promptly (but in any event within two business days thereafter) to confirm the same in writing if there should be any change affecting the accuracy of the above-mentioned information, or if the information regarding the undersigned s stock holdings set forth in any version of the Registration Statement or any portion thereof delivered to the undersigned (including by electronic mail) or reviewed by the undersigned, should be inaccurate; and (iv) agrees with the. Company and the several underwriters that for all purposes of the representations, warranties and agreements incorporated by reference herein from the Underwriting Agreement and the Custody Agreement and Irrevocable Power of Attorney of Selling Stockholder, the statements contained herein constitute (and in the absence of any such notification as is referred to in subclause (iii) given prior to the date on which the Underwriting Agreement is executed and delivered by the undersigned will constitute on a continuing basis) written information furnished by the undersigned to the Company for use in the Registration Statement, or any amendment or supplement thereto. The undersigned hereby further. acknowledges that pursuant to the Underwriting Agreement, the undersigned shall indemnify the Company and each of its directors and officers against, and hold the Company and each of its directors and officers harmless from, any losses, claims, damages, expenses or liabilities (including reasonable attorneys fees) to which the Company or its directors and officers may become subject by reason of any statement or omission in the Registration Statement and the prospectus (preliminary or final) contained therein made in reliance upon, or in conformity with, a written statement by the undersigned, including the information furnished in this Questionnaire by the undersigned. By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items (1) through (6) above and the inclusion of such information in the Registration Statement, any amendments thereto and the related prospectus. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus.

6 The undersigned has reviewed the answers to the above questions and affirms that the same are true, complete and accurate. THE UNDERSIGNED AGREES TO NOTIFY THE COMPANY IMMEDIATELY OF ANY CHANGES IN THE FOREGOING INFORMATION. Dated:, 2008 Signature of Record Holder: By: Title: (Please sign your name in exactly the same manner as the certificate(s) for the Shares being sold)

7 For purposes of this Questionnaire, the following terms have the following meanings: Affiliate. The term affiliate includes a company which controls, is controlled by or is under common control with a member. A company will be presumed to control a member if the company beneficially owns 10% or more of the outstanding voting securities of a member which is a corporation, or beneficially owns a partnership interest in 10% or more of the distributable profits or losses of a member which is a partnership. A member will be presumed to control a company if the member and... persons associated with the member beneficially own 10% or more of the outstanding voting securities of a company which is a corporation, or beneficially own a partnership interest in.10% or more of the distributable profits or losses of a company which is a partnership. A company will be presumed to be under common control with a member if (i) the same natural person or company controls both the member and company by beneficially owning 10% or more of the outstanding voting securities of a member or company which is a corporation, or by beneficially owning a partnership interest in 10% or more of the distributable profits or losses of a member or company which is a partnership or (ii) a person having the power to direct or cause the direction of the management or policies of the member or the company also has the power to direct or cause the direction of the management or policies of the other. entity in question. Associate. The term associate means (a) any corporation or organization (other than the Company or any of its subsidiaries) of which you are an officer, director or partner or of which you are, directly or indirectly, the beneficial owner of 5% or more of any class of equity securities, (b) any trustee or other estate in which you have a substantial beneficial interest or as to which you serve as trustee or in a similar capacity, (c) your spouse, (d) any relative of your spouse or any relative of yours who has the same home as you or who is a director of officer of key executive of the Company or any of its subsidiaries, and (e) any partner, syndicate member of person with whom you have agreed to act in concert with respect to the acquisition, holding, voting or disposition of shares of the Company s securities. Beneficial ownership. The term beneficial ownership shall mean the right to the economic benefits of a security. Immediate family. The term immediate family includes the parents, mother-in-law, father-in-law, spouse, brother or sister, brother-in-law or sister-in-law, son-in-law or daughter-inlaw, and children of a person, except any individual other than the spouse and children who does not live in the same household as, have a business relationship with, provide material support to, or receive material support from, such person. In addition, the immediate family includes any other person who either lives in the same household as, provides material support to, or receives material support from, such person. Issuer. The term issuer includes the Company, any selling security holders offering securities to the public, any affiliate of the Company or any selling security holder, and the officers or general partners, directors, employees and security holders thereof. Member. The term member means any individual, partnership, corporation, or other legal entity admitted to membership in the FINRA under the provisions of Article I of the By-laws of the FINRA.

8 FINRA. The term FINRA means the Financial Industry Regulatory Authority, Inc. Participating member. The term participating member means any member that is participating in a public offering, any associated persons of the member, any members of their immediate family and any affiliate of the member. Selling Stockholder. The term selling stockholder shall refer to any persons selling Shares in connection with the proposed public offering of Shares by the Issuer. Underwriter. The term underwriter shall be deemed to include underwriters, underwriters counsel, financial consultants and advisors, finders, any participating member and any other persons related to any participating member.