SUBSCRIPTION AGREEMENT
Exhibit
10.6.2
This
SUBSCRIPTION
AGREEMENT
(this
“Agreement”)
made
as of this 26th day of June, 2008 for the benefit of Indas Green Acquisition
Corporation, a company formed under the laws of the Cayman Islands (the
“Company”),
having its principal place of business at Xxxxx 00-00, Xxx Xxxxxxx Xxxx, Xxxxxxx
Xxxxx, Xxxxxxxxx 000000 and by the entity listed on the signature page hereto
under the heading “Subscriber” (“Subscriber”).
WHEREAS,
the Company desires to sell an aggregate of 100,000 warrants (the “Warrants”)
each
exercisable for one ordinary share of the Company for a purchase price of $1.00
per Warrant (i.e., an aggregate purchase price of at least $100.000); and
WHEREAS,
, the
offer and sale of the Warrants (the “Offering”)
is
being made in reliance upon the provisions of Regulation D (“Regulation
D”)
promulgated by the Securities and Exchange Commission (the “SEC”)
under
the Securities Act of 1933, as amended (the “Securities
Act”);
WHEREAS,
Subscriber wishes to purchase the Warrants and the Company wishes to accept
such
subscription.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Subscriber hereby agrees
as
follows
1. Agreement
to Subscribe
1.1 Purchase
and Issuance of the Warrants.
Upon
the terms and subject to the conditions of this Agreement, Subscriber hereby
agrees to purchase from the Company, and the Company hereby agrees to sell
to
the Subscriber, on the closing date as defined below in section 1.3, the number
of Warrants indicated on the signature page hereto by the caption, “Number of
Warrants Being Subscribed” (the “Subscriber's
Warrants”)
which
Subscriber Warrants will be issued to the Subscriber, or its affiliates or
designees. The aggregate purchase price for Subscriber’s Warrants (the
“Purchase
Price”)
is
indicated on the signature page hereto by the caption, “Purchase
Price.”
1.2 Delivery
of the Purchase Price.
Upon
execution of this Agreement Subscriber is hereby bound to fulfill its
obligations hereunder and hereby irrevocably commits to deliver to the Company
on the date of Closing (as hereinafter defined) the Purchase Price by bank
check, wire transfer or such other form of payment as shall be acceptable to
the
Company, in its sole and absolute discretion, at the Closing. Any such check
delivered to the Company shall be made payable to the order of “Indas Green
Acquisition Corporation.” Company irrevocably commits to deliver into a trust
account (the “Trust Account”), maintained by the Continental Stock Transfer
& Trust Company the Purchase Price received from this Agreement.
1.3 Closing.
The
Closing Date of the Offering (the “Closing”),
shall
take place at the offices of the Company immediately prior to the effective
date
of the registration statement pursuant to which the Company proposes to register
its initial public offering (the “IPO”)
of
5,250,000 units consisting of Ordinary Shares and Warrants (the “Closing Date”).
The proceeds of the Offering shall be deposited in the Company’s Trust Account
as described in the registration statement for the Company’s IPO. Upon Closing,
Subscriber’s Warrants shall be deemed to be held in escrow until deposited with
the trustee as described in the registration statement for the Company’s
IPO.
2. Representations
and Warranties of the Subscriber
Subscriber
represents and warrants to the Company that:
2.1 No
Government Recommendation or Approval.
The
Subscriber understands that no United States federal or state agency or similar
agency of any other country, has passed upon or made any recommendation or
endorsement of the Company or the Offering of the Warrants or ordinary shares
underlying the warrants (the “Warrant Shares”).
2.2 Regulation
D Offering.
Subscriber represents that it is an “accredited investor” as such term is
defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as
amended (the “Securities Act”) and acknowledges the sale contemplated hereby is
being made in reliance on a private placement exemption to “Accredited
Investors” within the meaning of Section 501(a) of Regulation D under the
Securities Act or similar exemptions under state law..
2.3 Intent.
The
Subscriber is purchasing the Warrants solely for investment purposes, for the
Subscriber's own account and not for the account or benefit of any U.S. person,
and not with a view towards the distribution or dissemination thereof and the
Subscriber has no present arrangement to sell the Warrants to or through any
person or entity. Subscriber shall not engage in hedging transactions with
regard to the Warrants and the underlying securities unless in compliance with
the Securities Act..
2.4 Restrictions
on Transfer.
Subscriber acknowledges and understands the Warrants are being offered in a
transaction not involving a public offering in the United States within the
meaning of the Securities Act. The Warrants have not been registered under
the
Securities Act, and, if in the future the Subscriber decides to offer, resell,
pledge or otherwise transfer the Warrants, such Warrants may be offered, resold,
pledged or otherwise transferred only (A) pursuant to an effective
registration statement filed under the Securities Act, (B) pursuant to an
exemption from registration under Rule 144 promulgated under the Securities
Act,
if available, or (C) pursuant to any other available exemption from the
registration requirements of the Securities Act, and in each case in accordance
with any applicable securities laws of any state or any other jurisdiction.
Subscriber agrees that if any transfer of its Warrants or any interest therein
is proposed to be made, as a condition precedent to any such transfer,
Subscriber may be required to deliver to the Company an opinion of counsel
satisfactory to the Company. Absent registration or another available exemption
from registration, the Subscriber agrees it will not resell the Warrants.
Subscriber further acknowledges that because the Company is a shell company
and
Rule 144 may not be available to the Subscriber for the resale of the Warrants
until one year after following consummation of the initial business combination
of the Company, despite technical compliance with the requirements of Rule
144
and the release or waiver of any contractual transfer restrictions.
2.5 Sophisticated
Investor.
(i) The
Subscriber is sophisticated in financial matters and is able to evaluate the
risks and benefits of the investment in the Warrants.
(ii) The
Subscriber is able to bear the economic risk of his investment in the Warrants
for an indefinite period of time, which is highly speculative and subject to
substantial risks because, among other things none of the Warrants have been
registered under the Securities Act and therefore cannot be sold unless
subsequently registered under the Securities Act or an exemption from such
registration is available.
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2.6 Independent
Investigation.
The
Subscriber, in making the decision to purchase the Warrants, has relied upon
an
independent investigation of the Company and has not relied upon any information
or representations made by any third parties or upon any oral or written
representations or assurances from the Company, its officers, directors or
employees or any other representatives or agents of the Company, other than
as
set forth in this Agreement and the Warrants. The Subscriber is familiar with
the business, operations and financial condition of the Company and has had
an
opportunity to ask questions of, and receive answers from, the Company’s
officers and directors concerning the Company and the terms and conditions
of
the offering of the Warrants and has had full access to such other information
concerning the Company as the Subscriber has requested.
2.7 Authority.
The
Subscriber is a limited liability company duly organized, validly existing
and
in good standing under the laws of the [State of Delaware] and possesses all
requisite power and authority necessary to carry out the transactions
contemplated by this Agreement.
2.8 No
Legal Advice from Company.
The
Subscriber acknowledges that he, she or it has had the opportunity to review
this Agreement and the transactions contemplated by this Agreement and the
other
agreements entered into between the parties hereto with the Subscriber's own
legal counsel and investment and tax advisors. Except for any statements or
representations of the Company made in this Agreement and the other agreements
entered into between the parties hereto, the Subscriber is relying solely on
such counsel and advisors and not on any statements or representations of the
Company or any of its representatives or agents for legal, tax or investment
advice with respect to this investment, the transactions contemplated by this
Agreement or the securities laws of any jurisdiction.
2.9 Reliance
on Representations and Warranties.
Subscriber understands the Warrants are being offered and sold to Subscriber
in
reliance on exemptions from the registration requirements under the Securities
Act, and analogous provisions in the laws and regulations of various states,
and
that the Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of the Subscriber
set
forth in this Agreement in order to determine the applicability of such
provisions.
2.10 No
Advertisements.
The
undersigned is not subscribing for the Warrants as a result of or subsequent
to
any advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media or broadcast over television or radio,
or
presented at any seminar or meeting.
2.11 Legend.
Subscriber acknowledges and agrees the certificates evidencing the Warrants
and
the Warrant Shares shall bear a restrictive legend (the “Legend”),
in
form and substance as set forth in Section 4 hereof, prohibiting the offer,
sale, pledge or transfer of the securities, except (i) pursuant to an
effective registration statement covering these securities under the Securities
Act or (ii) pursuant to any other exemptions from the registration
requirements under the Securities Act and such laws which, in the opinion of
counsel for this Company, is available..
3. Representations
and Warranties of the Company
The
Company represents and warrants to Subscriber that:
3.1 Valid
Issuance of Capital Stock.
The
total number of shares of all classes of capital stock which the Company has
authority to issue is 20,000,000 Ordinary Shares and 1,000,000 preferred shares.
As of the date hereof, the Company has 1,509,375 Ordinary Shares issued and
outstanding. All of the issued
shares of capital stock of the Company have been duly authorized, validly
issued, and are fully paid and non-assessable.
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3.2 Organization
and Qualification.
The
Company is a corporation duly incorporated and existing in good standing under
the laws of the Cayman Islands and has the requisite corporate power to own
its
properties and assets and to carry on its business as now being
conducted.
3.3 Authorization;
Enforcement.
(i) The
Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Warrants in
accordance with the terms hereof, (ii) the execution, delivery and performance
of this Agreement by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action,
and no further consent or authorization of the Company or its Board of Directors
or shareholders is required, and (iii) this Agreement constitutes valid and
binding obligations of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization,
or
similar laws relating to, or affecting generally the enforcement of, creditors'
rights and remedies or by equitable principles of general application and except
as enforcement of rights to indemnity and contribution may be limited by federal
and state securities laws or principles of public policy.
3.4 No
Conflicts.
To the
knowledge of the Company, the execution, delivery and performance of this
Agreement and the consummation by the Company of the transactions contemplated
hereby do not materially (i) result in a violation of the Company's Memorandum
and Articles of Association or (ii) conflict with, or constitute a default
under
any agreement, indenture or instrument to which the Company is a party. Other
than any SEC or state securities filings which may be required to be made by
the
Company subsequent to the Closing, and any registration statement which may
be
filed pursuant thereto, the Company is not required under federal, state or
local law, rule or regulation to obtain any consent, authorization or order
of,
or make any filing or registration with, any court or governmental agency or
self-regulatory entity in order for it to perform any of its obligations under
this Agreement or issue the Ordinary Shares in accordance with the terms
hereof.
4. Legends;
4.1 Legend.
The
Company will issue the Warrants, and when issued, the Warrant Shares, purchased
by the Subscriber in the name of the Subscriber. The Warrants and Warrant Shares
will bear the following Legend and appropriate “stop transfer” instructions:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION
OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE.”
SECURITIES
EVIDENCED BY THIS CERTIFICATE WILL BE ENTITLED TO REGISTRATION RIGHTS UNDER
A
REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS CONTAINED IN A SECURITIES ESCROW AGREEMENT (THE “AGREEMENT”) AND MAY
NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE
TERM
OF THE ESCROW PERIOD (AS DEFINED IN THE AGREEMENT).”
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4.2 Subscriber's
Compliance.
Nothing
in this Section 4 shall affect in any way the Subscriber's obligations and
agreement to comply with all applicable securities laws upon resale of the
Warrants, and the Warrant Shares.
4.3 Company’s
Refusal to Register Transfer of Warrants.
The
Company shall refuse to register any transfer of the Warrants and the Warrant
Shares, not made (i) pursuant to an effective registration statement filed
under
the Securities Act, or (ii) pursuant to an available exemption from the
registration requirements of the Securities Act.
5. Escrow
Upon
consummation of the IPO, the holders of the Warrants shall enter into a
securities escrow agreement (the “Escrow Agreement”) with Continental Stock
Transfer & Trust Company, whereby the Warrants shall be held in escrow until
the day after the date of the consummation of the initial Business Combination.
6.
Securities
Laws Restrictions.
In
addition to the restrictions contained in the Escrow Agreement, Subscriber
agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all
or
any part of the Warrants unless, prior thereto (a) a registration statement
on the appropriate form under the Securities Act and applicable state securities
laws with respect to the Securities proposed to be transferred shall then be
effective or (b) the Company shall have received an opinion from counsel
reasonably satisfactory to the Company, that such registration is not required
because such transaction complies with the Securities Act and the rules
promulgated by the SEC thereunder and with all applicable state securities
laws.
7.
Waiver
of Liquidation Distributions
In
connection with the Warrants purchased pursuant to this Agreement, the
Subscriber hereby waives any and all right, title, interest or claim of any
kind
in or to any liquidating distributions by the Company in the event of a
liquidation of the Company upon the Company's failure to timely complete a
Business Combination. For purposes of clarity, in the event the Subscriber
purchases Ordinary Shares in the IPO or in the aftermarket such shares shall
be
eligible to receive any liquidating distributions by the Company.
8. Governing
Law; Jurisdiction; Waiver of Jury Trial
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York. The parties hereto hereby waive any right to a jury trial
in
connection with any litigation pursuant to this Agreement and the transactions
contemplated hereby.
9. Forfeiture
of Warrants.
9.1. Failure
to Consummate Business Combination.
The
Warrants shall be forfeited to the Company in the event that the Company does
not consummate a Business Combination within 24 months from
the
date of the final prospectus relating to the Company’s IPO or in the event that
the shareholders approve an extension of the period of time to consummate a
Business Combination by an additional 12 months (the “Extended Period”), within
36 months from the date of the final prospectus.
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9.2. Termination
of Rights as holder; Escrow.
If the
Warrants are forfeited in accordance with this Section 8, then after such time
the Subscriber (or successor in interest), shall no longer have any rights
as a
holder of such Warrants, and the Company shall take such action as is
appropriate to cancel such Warrants. To effectuate the foregoing, all
certificates representing the Warrants shall be held in escrow as provided
in
Section 5 hereof. In addition, Subscriber hereby irrevocably grants the Company
a limited power of attorney for the purpose of effectuating the
foregoing.
10. Rescission
Right Waiver and Indemnification.
10.1.
Subscriber
understands and acknowledges an exemption from the registration requirements
of
the Securities Act requires there be no general solicitation of purchasers
of
the Warrants. In this regard, if the IPO were deemed to be a general
solicitation with respect to the Warrants, the offer and sale of such Warrants
may not be exempt from registration and, if not, Subscriber may have a right
to
rescind its purchase of the Warrants. In order to facilitate the completion
of
the Offering and in order to protect the Company, its shareholders and the
Trust
Account from claims that may adversely affect the Company or the interests
of
its shareholders, Subscriber hereby agrees to waive, to the maximum extent
permitted by applicable law, any claims, right to xxx or rights in law or
arbitration, as the case may be, to seek rescission of its purchase of the
Warrants. Subscriber acknowledges and agrees this waiver is being made in order
to induce the Company to sell the Warrants to such Subscriber. Subscriber agrees
the foregoing waiver of rescission rights shall apply to any and all known
or
unknown actions, causes of action, suits, claims or proceedings (collectively,
“Claims”) and related losses, costs, penalties, fees, liabilities and damages,
whether compensatory, consequential or exemplary, and expenses in connection
therewith, including reasonable attorneys’ and expert witness fees and
disbursements and all other expenses reasonably incurred in investigating,
preparing or defending against any Claims, whether pending or threatened, in
connection with any present or future actual or asserted right to rescind the
purchase of the Warrants hereunder or relating to the purchase of the Warrants
and the transactions contemplated hereby.
10.2. Subscriber
agrees not to seek recourse against the Trust Account for any reason whatsoever
in connection with its purchase of the Warrants or any Claim that may arise
now
or in the future.
10.3. Subscriber
acknowledges and agrees the shareholders of the Company are and shall be
third-party beneficiaries of the foregoing provisions of this Agreement.
10.4.
Subscriber
agrees that to the extent any waiver of rights under this Section 9 is
ineffective as a matter of law, such Subscriber has offered such waiver for
the
benefit of the Company as an equitable right that shall survive any statutory
disqualification or bar that applies to a legal right. Subscriber acknowledges
the receipt and sufficiency of consideration received from the Company hereunder
in this regard.
11. Terms
of the Warrant
The
Warrants are substantially identical to the warrants included in the units
offered in the IPO, except: (i) they
will not have a claim to the funds held in the trust account, (ii) they
will be placed in escrow and not released before, except in limited
circumstances, until after the consummation of a Business Combination as more
fully described in Section 5, (iii) they are being purchased in a private
placement pursuant to an exemption from the registration requirements of the
Securities Act and will become freely tradable only after they are registered
pursuant to a registration rights agreement to be entered on or before the
date
of the final prospectus relating to the Company’s IPO, (iv) they will be
non-redeemable so long as they are held by
Subscriber (or any of its permitted assigns),
(v) they are exercisable (a) on a “cashless” basis if
held
by the Subscriber or its permitted assigns
and (b)
may not be sold, assigned or transferred until the consummation of a business
combination, (vi) they will not have rights to any liquidation distribution,
and
(vii) may be exercised in the absence of an effective registration statement
covering the Ordinary
Shares underlying the Warrants. In the event that Company fails to consummate
a
business combination the Warrants will expire worthless. In
no
event will the Company be required to net cash settle the Warrant
exercise.
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12 Assignment;
Entire Agreement; Amendment
12.1 Assignment.
Neither
this Agreement nor any rights hereunder may be assigned by any party to any
other person other than by Subscriber to a person agreeing to be bound by the
terms hereof.
12.2 Entire
Agreement.
This
Subscription Agreement and the Warrants set forth the entire agreement and
understanding between the parties as to the subject matter thereof and merges
and supersedes all prior discussions, agreements and understandings of any
and
every nature among them.
12.3 Amendment.
Except
as expressly provided in this Agreement, neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge, or termination is sought.
12.4 Binding
Upon Successors.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and
assigns.
13 Notices;
Indemnity
13.1 Notices.
Unless
otherwise provided herein, any notice or other communication to a party
hereunder shall be sufficiently given if in writing and personally delivered
or
sent by facsimile with copy sent in another manner herein provided or sent
by
courier (which for all purposes of this Agreement shall include Federal Express
or other recognized overnight courier) or mailed to said party by certified
mail, return receipt requested, at its address provided for herein or such
other
address as either may designate for itself in such notice to the other and
communications shall be deemed to have been received when delivered personally,
on the scheduled arrival date when sent by next day or 2-day courier service,
or
if sent by facsimile upon receipt of confirmation of transmittal or, if sent
by
mail, then three days after deposit in the mail. If given by electronic
transmission, such notice shall be deemed to be delivered (a) if by electronic
mail, when directed to an electronic mail address at which the Subscriber has
consented to receive notice; (b) if by a posting on an electronic network
together with separate notice to the Subscriber of such specific posting, upon
the later of (1) such posting and (2) the giving of such separate notice; and
(c) if by any other form of electronic transmission, when directed to the
Subscriber.
13.2 Indemnification.
Each
party shall indemnify the other against any loss, cost or damages (including
reasonable attorney's fees and expenses) incurred as a result of such party's
breach of any representation, warranty, covenant or agreement in this
Agreement.
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14 Counterparts
This
Agreement may be executed in any number of counterparts, each of which shall
be
enforceable against the parties actually executing such counterparts, and all
of
which together shall constitute one instrument.
15 Survival;
Severability
15.1 Survival.
The
representations, warranties, covenants and agreements of the parties hereto
shall survive the Closing.
15.2 Severability.
In the
event that any provision of this Agreement becomes or is declared by a court
of
competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that
no
such severability shall be effective if it materially changes the economic
benefit of this Agreement to any party.
16 Titles
and Subtitles
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
[Signature
page follows]
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SUBSCRIPTION
INFORMATION AND SIGNATURE PAGE
Name
of
the Subscriber: Chardan
Capital Markets, LLC
(Please
print legibly)
Number
of Warrants Being Subscribed: 100,000
Aggregate
Purchase Price: $100,000
Place
of
Residency and/or Principal Place of Business:
00
Xxxxx
Xxxxxx
Xxxxx
0000
Xxx
Xxxx,
XX 00000,
This
subscription is accepted by the Company on the [ ] day of June,
2008.
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INDAS
GREEN ACQUISITION CORPORATION
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Date:
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By:
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Name:
Xxxxxx Xxxxxxxx
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Title:
Chief Executive Officer &
Director
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SUBSCRIBER:
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By:
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Name:
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Title:
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