EXHIBIT 10.46
THIS SUBSCRIPTION AGREEMENT hereinafter "Agreement" is entered into this 30th
day of December by and between Visijet, Inc., a Delaware corporation
(hereinafter "Visijet, Inc.") and ALPHA CAPITAL AKTIENGESELLSCHAFT (hereinafter
ALPHA CAPITAL).
WHEREAS ALPHA CAPITAL has agreed to loan to Visijet, Inc., the sum of
$500,000.00 (five hundred thousand dollars) with such loan to be evidenced by a
Convertible Note, and
WHEREAS ALPHA CAPITAL has agreed to wire said funds directly to Xxxxxxx
Medizintechnik GmbH (hereinafter Xxxxxxx) for the benefit of Visijet, Inc.
immediately upon execution of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Visijet, Inc. and ALPHA CAPITAL agree as
follows:
Due to the timeline of the need to wire funds to Xxxxxxx for the benefit of
Visijet, Inc., Visijet, Inc. and ALPHA CAPITAL have agreed to record the general
terms of the loan in this Agreement. Representations and warranties typically
found in documentation evidencing privately placed securities of a similar
nature, such as those currently being circulated by Visijet, Inc, in connection
with its offering of 8% convertible Notes and Warrants (the "Offering"), are
incorporated herein by reference and attached hereto in the form of the
Confidential Private Placement Memorandum detailing the Offering.
Visijet, Inc. agrees to pay directly to ALPHA CAPITAL the sum of $500,000 (five
hundred thousand dollars) upon the breaking of the escrow for the Offering, but
in no event later than close of business January 27, 2005. Alternatively, at the
option of ALPHA CAPITAL, this loan may be exchanged into $500,000 in principal
invested into the Offering. Visijet, Inc. further agrees to immediately direct
and authorize the transfer agent for Visijet, Inc.'s common stock to issue a
stock certificate in the name of ALPHA CAPITAL for 142,857 (one hundred forty
two thousand eight hundred and fifty seven) shares of the common stock of
Visijet, Inc., which must be delivered to ALPHA CAPITAL before January 6, 2005.
ALPHA CAPITAL shall be granted full registration rights for this common stock
and Visijet, Inc. represents that it and its securities counsel have reviewed
potential Section 5 integration issues associated with this subscription and
concluded that the pending SB-2 registration statement, SEC file number
333-120449 may be and will be amended to include the ALPHA CAPITAL securities
described herein in the registration statement currently on file with the SEC.
Visijet, Inc. agrees to issue a common stock purchase warrant to ALPHA CAPITAL
to purchase 1,250,000 (one million two hundred and fifty thousand) shares of
common stock of Visijet, Inc, The warrants shall have a term of 5 (five) years
and a strike price of $.40 (forty cents) per share. ALPHA CAPITAL shall be
granted full registration rights for the common stock underlying this warrant
and Visijet, Inc. represents that it and its securities counsel have reviewed
potential Section 5 integration issues associated with this subscription and
concluded that the pending SB-2 registration statement, SEC file number
333-120449, may be and will be amended to include the ALPHA CAPITAL securities
described herein in the registration statement currently on file with the SEC.
Commencing January 1, 2006, the Warrant will be exercisable on a "cashless
basis".
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If Visijet, Inc. does not timely pay the Convertible Note by the due date of
January 27, 2005 then Visijet, Inc. further agrees to grant to ALPHA CAPITAL an
additional warrant to purchase 100,000 (one hundred thousand) shares of common
stock in Visijet, Inc. under the same terms and conditions as those stated in
the paragraph above, for each week that Visijet, Inc. remains in default.
In addition should Visijet, Inc. be in default of this Agreement, ALPHA CAPITAL
shall have the right to convert any or all of said unpaid debt into the common
stock of Visijet, Inc. at any time ALPHA CAPITAL chooses. The conversion price
shall be fixed at 80% (eighty per cent) of the closing bid price of Visijet,
Inc. on the date of conversion. Visijet, Inc. and its securities counsel have
reviewed potential Section 5 integration issues associated with his subscription
and concluded that the pending SB-2 registration statement, SEC file number
333-120449, may be and will be amended to include the ALPHA CAPITAL securities
described herein in the registration statement currently on file with the SEC
and further agrees to register, in the same registration statement currently on
file with the SEC, an amount of shares equal to 200% (two hundred per cent) of
the number of shares underlying the conversion rights based on 80% (eighty per
cent ) of the current market price of $.41 (forty one cents). Thus the current
conversion price shall be $.328 (thirty two and eight tenths cents). Thus the
number of share to be currently registered is 1,524,390 (on million five hundred
twenty four thousand three hundred and ninety). There shall be no floor on the
conversion price. All such conversion rights shall terminate when and only when
Visijet, Inc. satisfies all the terms of this Agreement.
Visijet, Inc further agrees to pledge 100% (one hundred per cent) of all
receivables to ALPHA CAPITAL as collateral for the loan beginning with the
execution of this Agreement. Any funds collected by Visijet, Inc. from the
receivables pledged hereunder, now existing or created hereafter, will be
considered the property of ALPHA CAPITAL while the loan is outstanding and hold
as restricted funds for the benefit to ALPHA CAPITAL or deposited into a trust
or other account as directed by ALPHA CAPITAL at any time. Visijet, inc will act
in good faith to redirect any receivables hereafter created or incorrectly
received by Visijet, Inc. to the ALPHA CAPITAL account and will keep ALPHA
CAPITAL notified of any and all changes in its account receivable aging
schedules until the ALPHA CAPITAL investment has been paid in full. Visijet,
Inc. represents that it currently has $250,000 in good and collectibles
receivables outstanding on products and services sold and fully delivered, and
that it expects the creation of additional current receivables totaling a
minimum of $500,000 upon Visijet, Inc.'s ability to deliver the product,
currently being held by Xxxxxxx for non-payment, to its backlog of customers
seeking to enter into new purchase orders.
Visijet, Inc. agrees that it is responsible for all Attorney Fees and other
costs of collection should there be a default of any type that impacts ALPHA
CAPITAL'S ability to recover its investment.
Visijet, Inc. further agrees to pledge all Xxxxxxx product inventory that it may
own at the time of any default hereunder as additional collateral.
In addition Xxxxxx Xxxxxx and Xxxxxxxx Xxxxxxxxx as officers of Visijet, Inc.
agree to pledge 100% (one hundred per cent) of their equity ownership in
Visijet, Inc. to ALPHA CAPITAL as additional collateral.
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Visijet, Inc. agrees to deliver to ALPHA CAPITAL not later than January 7, 2005
a Security Agreement executed by Visijet, Inc., Stock Pledge Agreement signed by
Xxxxxx Xxxxxx and Xxxxxxxx Xxxxxxxxx, and any other documents reasonably
requested by ALPHA CAPITAL in order to memorialize the senior security interest
and stock pledges described above with Visijet, Inc., Xxxxx Xxxxxx and Xxxxxxxx
Xxxxxxxxx have agreed to and have granted to ALPHA CAPITAL.
Upon payment in full by Visijet, Inc. of its obligation hereunder ALPHA CAPITAL
agrees to release and return any and all collateral it is holding or has control
over under this Agreement, back to Visijet, Inc., its officers Xxxxxx Xxxxxx and
Xxxxxxxx Xxxxxxxxx, or other such party which has pledged or subordinated
collateral in connection with this Agreement.
Visijet, Inc. covenants that it shall not at any time claim any usury or other
law which would forgive it from repaying the loan as contemplate herein. If
interest would otherwise be payable in excess of the maximum amount permissible
under applicable law, the interest payable shall be reduced to the maximum
amount permissible.
Visijet, Inc. agrees to provide to ALPHA CAPITAL a "stand still" letter from
Xxxxxxx wherein Xxxxxxx, upon receipt of these funds, agrees not to terminate
its Agreement with Visijet, Inc. prior to January 12, 2005.
This Agreement shall be governed by the internal laws of the state of New York.
The parties hereto submit to the exclusive jurisdiction of the federal or state
court located in New York, New York with respect to any dispute arising under
this Agreement and the transactions contemplated hereby.
IN WITNESS HEREOF the parties execute this Agreement this 30th of December 2004.
Visijet, Inc. ALPHA CAPITAL AKTIENGESELLSCHAFT
By:__________________________________ By:________________________________
Xxxxxx Xxxxxx CEO/President
By:__________________________________
Xxxxxxxx Xxxxxxxxx Security/Treasurer
Attachments:
Visijet, Inc. Accounts Receivable Aging Summary dated December 28, 2004.
Visijet, Inc. Accounts Receivable Pledge and Restricted Account Instruction
Letter Agreement.
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Xxxxxx Xxxxxx and Xxxxxxxx Xxxxxxxxx Equity Please Letter Agreement.
Xxxxxxx Medizintechnik GmbH Stand Still Letter Agreement.
Secured Convertible Debenture Holders Collateral Pledge Agreement.
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