SUBSCRIPTION AGREEMENT
Exhibit
10.1
THIS
SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of July 12, 2010, is by and
among American DG Energy Inc., a Delaware corporation (the “Company”), and the
subscriber identified on the signature pages hereto (each a
“Subscriber”).
WHEREAS,
the Company and the Subscriber are executing and delivering this Agreement in
reliance upon an exemption from securities registration afforded by the
provisions of Section 4(2), Section 4(6) and/or Regulation D (“Reg. D”) as
promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “Securities Act”);
and
WHEREAS,
the parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall issue and sell to the Subscriber, as provided herein,
and the Subscriber shall purchase, in the aggregate, at the Closing (as defined
below), $1,000,000 (the “Purchase Price”) of shares of the Company’s Common
Stock (such shares, the “Shares”) at a purchase price per Share of U.S. $2.50
(“Per Share Purchase Price”). The Purchase Price shall be payable to the Company
at the Closing.
NOW,
THEREFORE, in consideration of the mutual covenants and other agreements
contained in this Agreement, the Company and the Subscriber hereby agree as
follows:
1. Purchase and Sale of
Shares. Subject to the satisfaction (or waiver) of the conditions
to Closing set forth in this Agreement, at the Closing, each Subscriber shall
purchase Shares for the portion of the Purchase Price indicated on such
Subscriber’s signature page hereto (the “Subscriber’s Purchase Price”), and the
Company shall sell such Shares to the Subscriber.
2. Closing; Deliveries
Etc.
(a) Closing. The
consummation of the transactions contemplated herein (the “Closing”) shall take
place remotely via the electronic exchange of documents and signatures, at 10:00
a.m., Eastern U.S. Time, on or before September 15, 2010 (the “Closing Date”),
provided that the conditions to Closing set forth herein have been satisfied or
waived.
(b) Company’s Deliveries.
At the Closing, the Company shall deliver or cause to be delivered to each
Subscriber a copy of duly executed irrevocable instructions, in customary form,
to the Company’s transfer agent instructing the transfer agent to deliver, on an
expedited basis, a certificate evidencing a number of Shares equal to such
Subscriber’s Purchase Price divided by the Per Share Purchase Price, registered
in the name of such Subscriber.
(c) Subscribers’
Deliveries. At the Closing, each Subscriber shall deliver or cause to be
delivered to the Company such Subscriber’s Purchase Price by wire transfer to an
account specified in writing by the Company prior to the Closing.
(d) Subscribers’ Closing
Conditions. The obligation of each Subscriber to consummate the
transactions contemplated by this Agreement at the Closing shall be subject to
the satisfaction, prior to or at the Closing, of the following
conditions: (i) the representations and warranties of the Company
contained in this Agreement shall be true and correct in all material respects
on and as of the Closing Date as though such warranties and representations were
made at and as of such date; (ii) the Company shall have performed and complied
in all material respects with all agreements, covenants and conditions contained
in this Agreement which are required to be performed or complied with by the
Company prior to or at the Closing; and (iii) there shall be no effective
injunction, writ, preliminary restraining order or any order of any nature
issued by a court of competent jurisdiction directing that the transactions
provided for herein or any of them not be consummated as herein
provided.
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(e) Company’s Closing
Conditions. The obligation of the Company to consummate the transactions
contemplated by this Agreement at the Closing, shall be subject, in the absence
of a written waiver by the Company, to the satisfaction, prior or at the
Closing, of the following conditions: (i) the representations and
warranties of each of the Subscribers contained in this Agreement shall be true
on and as of the Closing Date in all material respects as though such warranties
and representations were made at and as of such date; (ii) each Subscriber shall
have performed and complied in all material respects with all agreements,
covenants and conditions contained in this Agreement which are required to be
performed or complied with by it prior to or at the Closing; and (iii) there
shall be no effective injunction, writ, preliminary restraining order or any
order of any nature issued by a court of competent jurisdiction directing that
the transactions provided for herein or any of them not be consummated as herein
provided.
3. Subscribers’ Representations
and Warranties. Each Subscriber hereby represents and warrants to
and agrees with the Company, only as to such Subscriber, that:
(a) Information on
Company. The Subscriber has been furnished with or has had access at the
XXXXX website of the SEC to the Company’s Form 10-K for the year ended December
31, 2009, and all filings subsequently made by the Company with the SEC
(hereinafter referred to collectively as the “Reports”). In addition, the
Subscriber has received in writing from the Company such other information
concerning its operations, financial condition and other matters as the
Subscriber has requested in writing and considered all factors the Subscriber
deems material in deciding on the advisability of investing in the
Shares.
(b) Information on
Subscriber. The Subscriber was at the time it was offered the
Shares, is on the date hereof and will be on the Closing Date an “accredited
investor”, as such term is defined in Reg. D promulgated by the SEC under the
Securities Act, is experienced in investments and business matters, has made
investments of a speculative or high risk nature and has purchased securities of
publicly-owned companies in private placements in the past and, together with
its representatives and/or trustee, as applicable, has such knowledge and
experience in financial, tax and other business matters as to enable the
Subscriber to utilize the information made available by the Company to evaluate
the merits and risks of and to make an informed investment decision with respect
to the proposed purchase. The Subscriber has the authority and is duly and
legally qualified to purchase and own the Shares. The Subscriber is able
to bear the risk of such investment for an indefinite period and to afford a
complete loss thereof. The information set forth on the signature page
hereto regarding the Subscriber is accurate. The Subscriber was not formed for
the specific purpose of acquiring the Shares and is not a registered
broker-dealer or an affiliate of a registered broker-dealer.
(c) Purchase for
Investment. On the Closing Date, the Subscriber will purchase the
Shares as principal for its own account for investment and not with a view to
any sale of other transfer thereof in contravention of the Securities
Act.
(d) Compliance with the
Securities Act. The Subscriber understands and agrees that the
Shares have not been registered under the Securities Act or any applicable state
securities laws by reason of their issuance in a transaction that does not
require registration under the Securities Act (based in part on the accuracy of
the representations and warranties of Subscriber contained herein), and that
such Shares must be held indefinitely unless a subsequent disposition is
registered under the Securities Act or any applicable state securities laws or
is exempt from such registration.
(e) Restrictive
Legend. The Shares may bear a customary restrictive Securities Act
legend in the form specified by the Company.
(f) Communication of
Offer. The offer to sell the Shares was directly communicated to
the Subscriber by the Company. At no time was the Subscriber presented
with or solicited by any leaflet, newspaper or magazine article, radio or
television advertisement, or any other form of general advertising or solicited
or invited to attend a promotional meeting otherwise than in connection and
concurrently with such communicated offer.
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(g) Organization; Authority;
Enforceability. Such Subscriber, if an entity, is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization (if such “good standing” concept is recognized in such
jurisdiction) with full right, corporate, partnership or trust power
and authority to enter into and to consummate the transactions contemplated by
this Agreement. This Agreement and other agreements delivered together with this
Agreement or in connection herewith have been duly authorized, executed and
delivered by the Subscriber and are valid and binding agreements enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights generally and to general principles
of equity; and Subscriber has full corporate, partnership, trust or similar
power and authority necessary to enter into this Agreement and such other
agreements and to perform its obligations hereunder and under all other
agreements entered into by the Subscriber relating hereto.
(h) Correctness of
Representations. Each Subscriber represents as to such Subscriber
that the foregoing representations and warranties are true and correct as of the
date hereof and, unless a Subscriber otherwise notifies the Company prior to the
Closing, shall be true and correct as of the Closing Date.
(i)
Survival. The
foregoing representations and warranties shall survive the Closing Date for
three years.
(j)
Restriction on Short
Sales. Each Subscriber agrees that, to the extent required by law,
it will not enter into or effect any short sale or other hedging transaction
with respect to the Company’s Common Stock.
(k) Disclosure. Each
Subscriber acknowledges and agrees that the Company does not make nor has made
any representations or warranties with respect to the Shares or the transactions
contemplated hereby other than those specifically set forth in Section 4
hereof.
4. Company Representations and
Warranties. The Company represents and warrants to and agrees with
each Subscriber that on the date hereof:
(a) Due
Incorporation. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the requisite corporate power to own its properties and to carry on its business
as now being conducted.
(b) Outstanding
Stock. All issued and outstanding shares of capital stock of the
Company has been duly authorized and validly issued and are fully paid and
non-assessable.
(c) Authority;
Enforceability. The Company has full corporate power and authority
necessary to enter into and deliver this Agreement and to perform its
obligations thereunder. This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement enforceable
against the Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights generally and
to general principles of equity.
(d) Consents. No
consent, approval, authorization or order of any court or governmental agency or
body having jurisdiction over the Company is required for the execution by the
Company of this Agreement and compliance and performance by the Company of its
obligations hereunder, including, without limitation, the issuance and sale of
the Shares.
(e) No Violation or
Conflict. Assuming the representations and warranties of the
Subscribers in Section 3 are true and correct, neither the issuance and sale of
the Shares nor the performance of the Company’s obligations under this Agreement
and all other agreements entered into by the Company relating thereto by the
Company will:
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(i) violate,
conflict with, result in a breach of, or constitute a default (or an event which
with the giving of notice or the lapse of time or both would be reasonably
likely to constitute a default) under (A) the certificate of incorporation of
the Company, (B) to the Company’s knowledge, any decree, judgment, order, law,
treaty, rule, regulation or determination applicable to the Company of any court
or governmental agency or body having jurisdiction over the Company or over the
properties or assets of the Company, (C) the terms of any bond, debenture, note
or any other evidence of indebtedness, or any agreement, stock option or other
similar plan, indenture, lease, mortgage, deed of trust or other instrument to
which the Company is a party, by which the Company is bound, or to which any of
the properties of the Company is subject, or (D) the terms of any “lock-up” or
similar provision of any underwriting or similar agreement to which the Company
is a party except the violation, conflict, breach, or default of which would not
have a material adverse effect on the business, operations or financial
condition of the Company and its subsidiaries taken as a whole (a “Material
Adverse Effect”);
(ii) result
in the activation of any anti-dilution rights or a reset or repricing of any
debt or security instrument of any other creditor or equity holder of the
Company, nor result in the acceleration of the due date of any borrowing of the
Company; or
(iii) result
in the activation of any piggy-back registration rights of any person or entity
holding securities of the Company or having the right to receive securities of
the Company.
(f) The Shares. The
Shares upon issuance in accordance with the terms of this
Agreement:
(i) are,
or will be, free and clear of any security interests, liens, claims or other
encumbrances, subject to restrictions upon transfer under the Securities Act and
any applicable state securities laws;
(ii) will
be duly and validly authorized, and on the date of issuance of the Shares, the
Shares will be duly and validly issued, fully paid and nonassessable;
and
(iii) will
not have been issued or sold in violation of any preemptive or other similar
rights of the holders of any securities of the Company.
(g) Litigation.
There is no pending or, to the best knowledge of the Company, threatened action,
suit, proceeding or investigation before any court, governmental agency or body,
or arbitrator having jurisdiction over the Company that would affect the
execution by the Company or the performance by the Company of its obligations
under this Agreement, and all other agreements entered into by the Company
relating hereto. Except as disclosed in the Reports, there is no pending
or, to the best knowledge of the Company, basis for or threatened action, suit,
proceeding or investigation before any court or governmental agency or body,
which litigation if adversely determined could have a Material Adverse
Effect.
(h) Reporting
Company. The Company is a publicly-held company subject to
reporting obligations pursuant to the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) and its shares of Common Stock are registered
pursuant to Section 12(g) of the Exchange Act. The Company has timely
filed all reports and other materials required to be filed under the Exchange
Act during the preceding twelve months.
(i)
Information Concerning the
Company. The Reports contain all material information relating to
the Company and its operations and financial condition as of their respective
dates that is required by the Exchange Act to be disclosed therein. Since
the date of the financial statements included in the Reports, there has been no
Material Adverse Effect not disclosed in the Reports. The Reports, at the
time of filing, did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances when
made.
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(j)
No Integrated
Offering. Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has directly or indirectly made any offers
or sales of any security or solicited any offers to buy any security under
circumstances that would cause the offer of the Shares pursuant to this
Agreement to be integrated with prior offerings by the Company so as to
invalidate any exemptions under the Securities Act for the offer and sale of the
Shares.
(k) No General
Solicitation. Neither the Company, nor any of its affiliates, nor
to its knowledge, any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of Reg.
D under the Securities Act) in connection with the offer or sale of the
Shares.
(l)
No Material Undisclosed
Events or Circumstances. Since the date of the last Report filed
under the Exchange Act, no event or circumstance has occurred or exists with
respect to the Company or its business, operations or financial condition, that,
under applicable law, rule or regulation, requires the filing of a Report prior
to the date hereof that has not been so filed.
(m) Correctness of
Representations. The Company represents that the foregoing
representations and warranties are true and correct as of the date hereof in all
material respects, and, unless the Company otherwise notifies the Subscribers
prior to the Closing, shall be true and correct in all material respects as of
the Closing Date.
(n) Survival. The
foregoing representations and warranties shall survive the Closing Date for a
period of three years.
5. Reg. D
Offering. The offer and issuance of the Shares to the Subscribers
is being made pursuant to the exemption from the registration provisions of the
Securities Act afforded by Section 4(2) or Section 4(6) of the Securities Act
and/or Rule 506 of Reg. D promulgated thereunder.
6. Covenants of the
Company. The Company covenants and agrees with the Subscribers as
follows:
(a) Exchange Act
Filings. The Company shall file a Form 8-K with the SEC disclosing
the transactions contemplated by this Agreement within the time period specified
therefor by the rules and regulations under the Exchange Act. The Company agrees
to file a Form D with respect to the Shares as required under Reg.
D.
(b) Reporting
Requirements. Until all of the Shares have been resold or
transferred by all of the Subscribers, or, if earlier, two years after the
Closing Date, the Company will use commercially reasonable best efforts (i) not
to take any action or file any document (whether or not permitted by the
Securities Act or the Exchange Act or the rules thereunder) to terminate or
suspend the registration of the shares of the Company’s Common Stock under the
Exchange Act and (ii) to continue the listing of the shares of the Company’s
Common stock on the Over-the-Counter Bulletin Board or other established trading
market.
7. Special Purchase Right
Regarding EuroSite Power Inc. Subsidiary. The Company has advised the
Subscriber that it has formed a subsidiary in Delaware to conduct its European
operations under the name EuroSite Power Inc. The Company hereby grants to the
Subscriber, on behalf of EuroSite Power, the non-assignable right, for a period
of two years from the date hereof, to purchase 400,000 shares of the common
equity of EuroSite Power at a per share purchase price of $1.00. The Subscriber
may effect such purchase of all and not less than all of such securities by
written notice thereof to the Company and EuroSite Power. As a condition to the
purchase, the Subscriber will execute such investment documentation as the
Company or EuroSite Power shall request and will make such representations and
warranties regarding the purchase as are required by law. In the event
EuroSite Power effects any stock split, recapitalization, merger or similar
event, the Company will make appropriate adjustments to these purchase
provisions and will notify the Subscriber thereof.
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8. Registration Rights.
The Company hereby grants the following registration rights to holders of the
Shares.
(a) Registration
Statement. The Company shall file with the SEC not later than
thirty (30) days after the Closing Date a “shelf” registration statement on an
appropriate form (the “Registration Statement”) covering the resale of the
Shares and shall use its commercially reasonable best efforts to cause the
Registration Statement to be declared effective as soon as
practicable.
(b) Registration
Procedures. In connection with the Registration Statement, the Company
will:
(i) prepare
and file with the SEC such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith as may be necessary to
keep such Registration Statement effective with respect to each Subscriber until
such time as all of the Shares owned by such Subscriber may be resold without
restriction under the Securities Act; and
(ii) immediately
notify the Subscribers when the prospectus included in the Registration
Statement is required to be delivered under the Securities Act, of the happening
of any event of which the Company has knowledge as a result of which the
prospectus contained in such Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing. If the Company notifies
the Subscribers to suspend the use of any prospectus until the requisite changes
to such prospectus have been made, then the Subscribers shall suspend use of
such prospectus. In such event, the Company will use its commercially
reasonable efforts to update such prospectus as promptly as is
practicable.
(c) Provision of Documents
etc. In connection with the Registration Statement, each Subscriber
will furnish to the Company in writing such information and representation
letters with respect to itself and the proposed distribution by it as reasonably
shall be necessary in order to assure compliance with federal and applicable
state securities laws. The Company may require each Subscriber, upon five
business days’ notice, to furnish to the Company a certified statement as to,
among other things, the number of Shares and the number of other
shares of the Company’s Common Stock beneficially owned by such Subscriber and
the person that has voting and dispositive control over such shares. Each
Subscriber covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act, if applicable, in connection with sales of
Shares pursuant to the Registration Statement.
(d) Expenses. All
expenses incurred by the Company in complying with this section, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel and independent public accountants for the Company,
fees of transfer agents and registrars are called “Registration Expenses.” All
underwriting discounts and selling commissions applicable to the sale of the
Shares, including any fees and disbursements of any counsel to the Subscriber,
are called “Selling Expenses.” The Company will pay all Registration Expenses in
connection with the Registration Statement. Selling Expenses in connection
with the Registration Statement shall be borne by the applicable
Subscriber.
(e) Indemnification and
Contribution.
(i) The
Company will, to the extent permitted by law, indemnify and hold harmless each
Subscriber, each officer of such Subscriber, each director of such Subscriber,
and each other person, if any, who controls such Subscriber within the meaning
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such Subscriber or such other person (a “controlling
person”) may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
(“Claims”) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement at the
time of its effectiveness, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances when made, and will, subject to the
limitations herein, reimburse such Subscriber and each such controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Claim; provided, however, that the Company
shall not be liable to a Subscriber to the extent that any Claim arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in conformity with information furnished by such
Subscriber or any such controlling person in writing specifically for use in the
Registration Statement or related prospectus, as amended or
supplemented.
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(ii) Each
Subscriber severally but not jointly will, to the extent permitted by law,
indemnify and hold harmless the Company, and each person, if any, who controls
the Company within the meaning of the Securities Act, each underwriter, each
officer of the Company who signs the Registration Statement and each director of
the Company against all Claims to which the Company or such officer, director,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such Claims arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and each such officer, director, underwriter and 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,
provided, however, that such Subscriber will be liable hereunder in any such
case if and only to the extent that any such Claim arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such Subscriber, as such, furnished in writing to the Company by such Subscriber
specifically for use in the Registration Statement or related prospectus, as
amended or supplemented.
(iii) Promptly
after receipt by an indemnified party hereunder of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party hereunder, notify the indemnifying party in
writing thereof, but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to such indemnified party other
than under this section and shall only relieve it from any liability which it
may have to such indemnified party under this section except and only if and to
the extent the indemnifying party is materially prejudiced by such omission. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this section for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified parties, as a group,
shall have the right to select one separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
reasonable expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as incurred.
The indemnifying party shall not be liable for any settlement of any such
proceeding affected without its written consent, which consent shall not be
unreasonably withheld.
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(iv) In
order to provide for just and equitable contribution in the event of joint
liability under the Securities Act in any case in which either (i) a Subscriber,
or any controlling person of a Subscriber, makes a claim for indemnification
pursuant to this section but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this section provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of the Subscriber or
controlling person of the Subscriber in circumstances for which indemnification
is not provided under this section, then, and in each such case, the Company and
the Subscriber will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in a
manner that reflects, as near as practicable, the economic effect of the
foregoing provisions of this section. Notwithstanding the foregoing, no person
or entity guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
(f) Delivery of Unlegended
Shares.
(i) Within
three business days (such business day, the “Unlegended Shares Delivery Date”)
after the business day on which the Company has received (i) a notice that
Shares have been sold either pursuant to, and in compliance with, the
Registration Statement or Rule 144 under the Securities Act and (ii) in the case
of sales under Rule 144, customary representation letters of the Subscriber and
Subscriber’s broker regarding compliance with the requirements of Rule 144, the
Company at its expense, (A) shall deliver the Shares so sold without any
restrictive legends relating to the Securities Act (the “Unlegended Shares”);
and (B) shall cause the transmission of the certificates representing the
Unlegended Shares together with a legended certificate representing the balance
of the unsold Shares, if any, to the Subscriber at the address specified in the
notice of sale, via express courier, by electronic transfer or otherwise on or
before the Unlegended Shares Delivery Date. Transfer fees shall be the
responsibility of the Subscriber.
(ii) In
lieu of delivering physical certificates representing the Unlegended Shares, if
the Company’s transfer agent is participating in the Depository Trust Company
(“DTC”) Fast Automated Securities Transfer program, upon request of a
Subscriber, so long as the certificates therefor do not bear a legend and the
Subscriber is not obligated to return such certificate for the placement of a
legend thereon, the Company shall use its best efforts to cause its transfer
agent to electronically transmit the Unlegended Shares by crediting the account
of Subscriber’s broker with DTC through its Deposit/Withdrawal at Custodian
system. Such delivery must be made on or before the Unlegended Shares
Delivery Date but is subject to the cooperation of the Subscriber’s broker (the
so-called DTC participant).
(iii) Each
Subscriber, severally and not jointly, agrees that the removal of the
restrictive legend from certificates representing the Shares as set forth in
this section is predicated upon the Company’s reliance that the Subscriber will
sell any Shares pursuant to either the registration requirements of the
Securities Act, including any applicable prospectus delivery requirements, or an
exemption therefrom.
9. Miscellaneous.
(a) Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) delivered by reputable
overnight courier service with charges prepaid, or (iii) transmitted by fax,
addressed, if to the Company, to Chief Financial Officer, American DG Energy
Inc., 45 Xxxxx Xxxxxx, Xxxxxxx, XX 00000, fax: (000) 000-0000, and if to a
Subscriber, to such Subscriber at the address set forth on the signature pages
hereto or to such other address as such party shall have specified most recently
by written notice.
(b) Amendments;
Waivers.
No provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and the
Subscribers. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right.
(c) Legal Fees.
Each party shall pay its own legal fees and expenses in connection with
the transactions contemplated by this Agreement.
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(d) Entire Agreement;
Assignment. This Agreement and other documents delivered in
connection herewith represent the entire agreement between the parties hereto
with respect to the subject matter hereof. Neither the Company nor the
Subscribers have relied on any representations not contained or referred to in
this Agreement and the documents delivered herewith. No right or
obligation of either party shall be assigned by that party without prior notice
to and the written consent of the other party.
(e)
Counterparts/Execution.
This Agreement may be executed in any number of counterparts and by the
different signatories hereto on separate counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument. Signatures to this Agreement
may be delivered by fax or by scan/email.
(f)
Law Governing this
Agreement. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to principles
of conflicts of laws. Any action brought by either party against the other
concerning the transactions contemplated by this Agreement shall be brought only
in the state courts of Massachusetts or in the federal courts located in
Massachusetts. The parties and the individuals executing this Agreement
and other agreements referred to herein or delivered in connection herewith on
behalf of the Company agree to submit to the jurisdiction of such courts and
waive trial by jury.
(g) Independent Nature of
Subscribers’ Obligations and Rights. The obligations of each
Subscriber hereunder are several and not joint with the obligations of any other
Subscriber hereunder, and no such Subscriber shall be responsible in any way for
the performance of the obligations of any other hereunder.
(h) Equitable
Adjustment. The Shares and the Purchase Price Per Share shall
be equitably adjusted to offset the effect of stock splits, stock dividends, and
distributions of property or equity interests of the Company to its shareholders
prior to the Closing.
[Signature
pages immediately follow]
9
Signature
Page to Subscription Agreement
Dated
July 12, 2010
Please
acknowledge your acceptance of the foregoing Subscription Agreement on the date
set forth above by signing and returning a copy to the undersigned whereupon it
shall become a binding agreement between us.
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx
|
|
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Name:
Xxxxxxx X. Xxxxxxxx
|
||
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Title:
Chief Financial Officer
|
||
AGREED
AND ACCEPTED:
SUBSCRIBER:
|
U.S.
$2.50
|
NETTLESTONE
ENTERPRISES LIMITED
|
|
|
Per
share purchase price é
|
Subscriber’s
name é
|
|
|
U.S.
$1,000,000.00
|
||
|
Aggregate
dollar amount being purchased é
|
/s/
Xxxxxxx Xxxxxxxx
|
|
|
Subscriber’s
signature é
|
||
|
Director
|
||
|
Title
of signatory, if Subscriber is an entity1 é
|
||
|
Address
of the Subscriber ê
|
||
|
P.X.
Xxx 000 Xoseneath
|
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The
Grange, St. Xxxxx Port
|
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Guernsey
GY1-3SJ – Channel Islands
|
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Email address: xxxxxxx.xxxxxxxx@xxxxxxxxxxx.xxx
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Fax
number: +44 (1481) 730-460
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U.S.
Tax ID # (if
any): N/A
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