EXHIBIT 10.28
SUBSCRIPTION AGREEMENT between IA GLOBAL, INC., a Delaware corporation
(the "COMPANY"), and PBAA FUND, a Japanese limited liability company
(the "SUBSCRIBER")
_________________________
The Company is offering for sale to the Subscriber, on the terms and
conditions set forth below, a convertible note (the "NOTE"), with such principal
amount convertible into 5,000,000 shares (the "SHARES") of the common stock of
the Company (the "COMMON STOCK") at a price of USD $0.30 per share, or an
aggregate price of USD $1,500,000.00 (the "OFFERING PRICE").
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereby agree as follows:
I. SUBSCRIPTION FOR SHARES; REPRESENTATIONS BY SUBSCRIBER
1.1 Subject to the terms and conditions hereinafter set forth, the
Subscriber hereby subscribes for and agrees to purchase from the Company, and
the Company agrees to issue and sell to the Subscriber, the Note. The Offering
Price is payable by wire transfer to the Company in accordance with instructions
to be given by the Company to the Subscriber at the time the Shares are
subscribed for. The Note evidencing the loaned amount will be issued to the
Subscriber simultaneously with the payment to the Company and satisfaction of
the conditions set forth in Section 2.3 hereof.
1.2 The Subscriber recognizes that the purchase of the Note entails
elements of risk in that (i) it may not be able to readily liquidate its
investment; (ii) transferability is restricted; and (iii) in the event of a
disposition, it could sustain the loss of its entire investment.
1.3 The Subscriber represents that it is neither a citizen, resident or
domiciliary of the United States of America, its territories or possessions, nor
of the Commonwealth of Puerto Rico.
1.4 The Subscriber acknowledges that it has prior investment experience
such that it is able to evaluate the merits and risks of an investment in the
Company, or that it has employed the services of an investment advisor to read
the Disclosure Documents (as hereinafter defined) and to evaluate the merits and
risks of such an investment on its behalf; that it recognizes the speculative
nature of this investment; and that it is able to bear the economic risk it
hereby assumes. The Company's (i) Annual Report on Form 10-K for the year ended
December 31, 2002, as filed with the U.S. Securities and Exchange Commission
("SEC"), and its (ii) Quarterly Report on Form 10-Q for the fiscal period ended
September 30, 2003, as filed with the SEC, are collectively referred to as the
"DISCLOSURE DOCUMENTS." The Subscriber acknowledges that it or its
representative(s) have read the Disclosure Documents. The Subscriber also
acknowledges that it and its representative(s) have been afforded the
opportunity to make, and has made, all inquiries as it and its representatives
deemed appropriate with respect to the Company's affairs and prospects.
1.5 The Subscriber hereby acknowledges that (i) the Note and the Shares
for which the Note is convertible have not been reviewed by the SEC by reason of
the Company's intention that the transaction be exempt from the registration and
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prospectus delivery requirements of the U.S. Securities Act of 1933, as amended
(the "ACT") pursuant to Section 4(2) thereof; (ii) the issuance of the Shares
upon conversion of the Note has not been qualified under any state securities
laws on the grounds that the sale of the Note and the conversion thereof into
the Shares contemplated hereby are exempt therefrom; and (iii) the foregoing
exemptions are predicated on the Subscriber's representations set forth herein.
The Subscriber represents that the Note is being purchased for its own account,
for investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof, within the meaning of the Act or
applicable state securities laws. The Subscriber understands that neither the
Note nor the Shares, upon conversion of the Note and issuance thereof, will not
be registered under the Act and may be required to be held indefinitely unless
they are subsequently registered under the Act, or an exemption from such
registration is available.
1.6 The Subscriber represents that it is an "accredited investor" as
that term is defined in Rule 501 of Regulation D promulgated under the Act.
1.7 The Subscriber acknowledges that the certificate representing the
Note, and any certificate representing the Shares issued upon conversion
thereof, shall bear a legend in substantially the following form:
"These securities have not been registered under the U.S.
Securities Act of 1933, as amended, and may not be sold,
offered for sale, assigned, transferred or otherwise disposed
of to any person or entity who is a citizen, resident or
domiciliary of the United States of America, its territories
or possessions, or of the Commonwealth of Puerto Rico, unless
registered pursuant to the provisions of that Act or an
opinion of counsel to the Company is obtained stating that
such disposition is in compliance with an available exemption
from such registration."
1.8 The Subscriber represents that it has the full right, power and
authority to enter into and perform the Subscriber's obligations hereunder, and
this Agreement constitutes a valid and binding obligation of the Subscriber
enforceable in accordance with its terms, except that (i) any enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or similar laws
from time to time in effect and affecting the rights of creditors generally and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceedings therefor may be brought.
II. REPRESENTATION AND WARRANTIES BY THE COMPANY
The Company represents and warrants to the Subscriber as follows:
2.1 The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Company has the
corporate power and authority to own, lease and operate its properties and to
conduct the business which it presently conducts. The Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except for such
jurisdictions where the failure to be so qualified or in good standing would not
have a material
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adverse effect on the condition, financial or otherwise, or on the results of
operations, business affairs or business prospects of the Company.
2.2 The execution, delivery and performance of this Agreement by the
Company (a) has been duly authorized and approved by the Board of Directors of
the Company and all other necessary corporate action on the part of the Company
in connection therewith has been taken and (b) will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to (i) the charter documents or by-laws of the Company, (ii)
any material contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by which it may be
bound or to which any of its properties may be subject or (iii) any law,
administrative regulation or court decree applicable to or binding upon the
Company. This Agreement has been duly and validly executed and delivered by the
Company and constitutes the legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, except that (x) any enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or similar laws
from time to time in effect and affecting the rights of creditors generally and
(y) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceedings therefor may be brought.
2.3 The Note, and the issuance of any Shares upon conversion thereof,
has been duly and validly authorized by the Board of Directors of the Company,
but a sufficient number of unissued shares of Common Stock has not as yet been
authorized by the Company in accordance with applicable Delaware law nor has the
sale of the Shares to the Subscriber been approved by the Company's stockholders
pursuant to the rules of the American Stock Exchange Inc. The Company covenants
and agrees to convene a special meeting of its stockholders on or before July
31, 2004 to consider and vote upon proposals to (i) increase the authorized
shares of Common Stock of the Company to not less than one hundred fifty million
(150,000,000) in number, and (ii) approve the sale of the Shares to the
Subscriber, and will exert its commercially reasonable best efforts to cause a
majority in equity interest of its stockholders to vote in favor of each such
proposal thereat. No authorization, approval or consent of any court,
governmental authority or agency is necessary in connection with the issuance by
the Company of the Note or the Shares issued upon conversion thereof.
2.4 The Disclosure Documents are true, correct and complete in all
material respects, and do not contain an untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
2.5 Since the respective dates as of which information was given in the
Disclosure Documents, except as otherwise stated therein: (i) there has been no
material adverse change in the financial condition, or in the results of
operations, affairs or prospects of the Company, whether or not arising in the
ordinary course of business; and (ii) there have been no transactions entered
into by the Company, other than those in the ordinary course of business, which
are material to the Company.
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III. ABSENCE OF REGISTRATION RIGHTS
3.1 No rights to registration of the Shares under the Act are being
granted by the Company to the Subscriber.
IV. MISCELLANEOUS
4.1 Any notice, request, advice, consent or other communication given
hereunder shall be given in writing and sent by overnight delivery service or
registered or certified mail, return receipt requested, and addressed as
follows: if to the Company, to it at 000 Xxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxxxx 00000 Xxxxxx Xxxxxx of America, Attention: Secretary; and
if to the Subscriber, to it at its address indicated below its signature to this
Agreement. Notices so given shall be deemed to have been given on the earlier to
occur of actual receipt or three business days after the date of such mailing,
except for notices of change of address, which shall be deemed to have been
given when received.
4.2 This Agreement shall not be changed, modified or amended except by
a writing signed by the parties hereto.
4.3 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. This Agreement sets 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.
4.4 References herein to a person or entity in either gender include
the other gender or no gender, as appropriate.
4.5 This Agreement and its validity, construction and performance shall
be governed in all respects by the laws of the State of New York.
4.6 This Agreement may be executed in counterparts.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth below.
IA GLOBAL, INC.
/s/ Xxxx Xxxxxxxxxx
By: ______________________________
Name: Xxxx Xxxxxxxxxx
Title: Chief Executive Officer
MARCH 5 , 2004
Date of Acceptance
of Subscription
PBAA FUND, LTD.
BY: /S/ XXXXXX XXXXX
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Name: Hiroki Isobi
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Title: Director
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