EXHIBIT 10.1
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "AGREEMENT") is made as of this ___ day
of _________, 2006, by and among High Tide Ventures, Inc., a Nevada corporation
(the "COMPANY"), MMC Energy North America, LLC, a Delaware limited liability
company ("MMC") and the investor identified on the signature page to this
Agreement (the "INVESTOR").
RECITALS:
WHEREAS, the Company and MMC have executed a term sheet, by which they
have agreed to enter into an Agreement and Plan of Merger and Reorganization,
pursuant to which MMC Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of the Company, will merge with and into MMC, with MMC
being the surviving entity and a wholly-owned subsidiary of the Company (the
"MERGER"), upon the effective date of the Merger (the "MERGER EFFECTIVE DATE");
WHEREAS, as a condition to the consummation of the Merger, and to provide
the capital required by MMC for working capital purposes, the Company is
offering in compliance with Rule 506 of Regulation D of the Securities Act of
1933, as amended (the "SECURITIES ACT"), to accredited investors in a private
placement transaction (the "OFFERING"), a minimum (the "MINIMUM") of 6,000,000
shares and a maximum (the "MAXIMUM") of 10,000,000 shares of the Company's
common stock, par value $0.001 per share ("COMMON STOCK");
WHEREAS, the Investor desires to subscribe for, purchase and acquire from
the Company and the Company desires to sell and issue to the Investor the number
of shares, set forth on the signature page of this Agreement (the "INVESTOR'S
SHARES") upon the terms and conditions and subject to the provisions hereinafter
set forth;
WHEREAS, in connection with the purchase of the Investor's Shares, the
Company and the Investor will execute a Registration Rights Agreement dated as
of the same date as this Agreement pursuant to which the Company will provide
certain registration rights to the Investor (the "REGISTRATION RIGHTS
AGREEMENT"); and
WHEREAS, the Company, MMC and McGuireWoods LLP (the "ESCROW AGENT") have
entered into an Escrow Agreement (the "ESCROW AGREEMENT") to provide for the
safekeeping of funds received and documents executed in connection with the
Offering.
NOW, THEREFORE, for and in consideration of the mutual premises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Purchase and Sale of the Shares. Subject to the terms and conditions of
this Agreement and the satisfaction of the Closing Conditions, the Investor
subscribes for and agrees to purchase and acquire from the Company and the
Company agrees to sell and issue to the Investor the Investor's Shares at the
purchase price of $1.00 per share (the "PURCHASE PRICE").
2. The Closing. The Offering will terminate upon the earlier of i) the
receipt of acceptable subscriptions totaling $10,000,000 or such greater amount
as the Company may determine, or ii) the election of the Company upon receipt of
subscriptions totaling at least $6,000,000; provided however, that the initial
closing of the Offering shall be concurrent with the close of the Merger (the
"CLOSING DATE") at the offices of the Escrow Agent. On the Closing Date, the
Escrow Agent shall deliver the funds and Transaction Documents (as defined
herein) held in escrow as of the Closing Date pursuant to the terms of the
Escrow Agreement. As soon as practicable after the Closing Date, the Company
shall issue and deliver, or shall cause the issuance and delivery of, a stock
certificate, registered in the name of the Investor and representing the shares
of Common Stock underlying the Investor's Shares.
3. Subscription Procedure. To complete a subscription for shares of Common
Stock, the Investor must fully comply with the subscription procedure provided
in this Section on or before 5:00 p.m. eastern time on the Closing Date.
(a) Transaction Documents. Prior to 5:00 p.m. eastern time on the
Closing Date, the Investor shall review, complete and execute this Agreement,
the Investor Questionnaire attached hereto as Appendix A and the Registration
Rights Agreement, and deliver such agreements and questionnaire to the Escrow
Agent at the address provided below. Executed agreements and questionnaires may
be delivered to the Escrow Agent by facsimile using the facsimile number
provided below if the Investor immediately thereafter confirms receipt of such
transmission with the Escrow Agent and delivers the original copies of the
agreements and questionnaire to the Escrow Agent as soon as practicable
thereafter.
Escrow Agent - Mailing Address and Facsimile Number:
McGuireWoods LLP
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
Attention: Nova Harb
Telephone Number: (000) 000-0000
(b) Purchase Price. Simultaneously with the delivery of the
Transaction Documents to the Escrow Agent as provided herein, and in any event
on or prior to 5:00 p.m. eastern time on the Closing Date, the Investor shall
deliver to the Escrow Agent the full Purchase Price for the Investor's Shares by
wire transfer of immediately available funds pursuant to wire transfer
instructions provided below:
Escrow Agent - Wire Transfer Instructions:
BANK OF AMERICA - Jacksonville, FL
ABA: 000000000 (Domestic Wires)
Swift Code: XXXXXX0X (International Wires)
Credit: McGuireWoods LLP IOLTA Account
Account Number: 2101206537
Reference: Xxxxx Xxxxx - High Tide Ventures, Inc. Escrow -
2048178-0001
McGuireWoods Accounting Contact: Xxxxx Xxxxx (000) 000-0000
Bank Contact: Xxxxxxx Xxxxx (000) 000-0000, Opt. 2, Ext. 2160
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(c) Purchaser Representative. If the Investor has retained the
services of a purchaser representative to assist in evaluating the merits and
risks associated with investing in the shares of Common Stock, the Investor must
deliver along with the Transaction Documents a purchaser representative
certificate in a form acceptable to the Company.
4. Representations and Warranties of the Company and MMC. In order to
induce the Investor to enter into this Agreement, the Company and, as
applicable, MMC represent and warrant to the Investor the following:
(a) Authority. The Company and MMC each is an entity duly organized,
validly existing, and in good standing under the laws of the state in which it
was incorporated or otherwise formed, and has all requisite right, power, and
authority to execute, deliver and perform this Agreement.
(b) Subsidiaries. The Company has no direct or indirect subsidiaries
(each a "SUBSIDIARY" and collectively the "SUBSIDIARIES") other than those set
forth in the Exchange Act Documents (as defined in Section 3(f)), or as are
necessary or desirable to consummate the Merger and the transactions
contemplated in the Merger Agreement. Except as disclosed in the Exchange Act
Documents, the Company owns, directly or indirectly, all of the capital stock of
each Subsidiary free and clear of any and all liens, and all the issued and
outstanding shares of capital stock of each Subsidiary are validly issued and
are fully paid, non-assessable and free of preemptive and similar rights.
(c) Enforceability. The execution, delivery, and performance of this
Agreement by the Company have been duly authorized by all requisite corporate
action. This Agreement has been duly executed and delivered by each of the
Company and MMC, and, upon its execution by the Investor, shall constitute the
legal, valid, and binding obligation of each of the Company and MMC, enforceable
in accordance with its terms, except to the extent that its enforceability is
limited by bankruptcy, insolvency, reorganization, or other laws relating to or
affecting the enforcement of creditors' rights generally and by general
principles of equity.
(d) No Violations. The execution, delivery, and performance of this
Agreement by the Company or by MMC does not, and will not, violate or conflict
with any provision of the Company's or MMC's respective Certificate of
Incorporation or Bylaws, or other charter documents, and does not and will not,
with or without the passage of time or the giving of notice, result in the
breach of, or constitute a default, cause the acceleration of performance, or
require any consent under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of the Company, or as applicable of MMC,
pursuant to, any material instrument or agreement to which the Company, or MMC,
is a party or by which the Company, or MMC, or its properties are bound.
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(e) Capitalization. The authorized capital stock of the Company
consists of: 75,000,000 shares of Common Stock, of which as of December 31,
2005, 12,650,000 shares were issued and outstanding. Upon issuance in accordance
with the terms of this Agreement against payment of the Purchase Price therefor,
the shares of Common Stock underlying the Investor's Shares will be duly and
validly issued, fully paid, and nonassessable and free and clear of all liens
imposed by or through the Company, and, assuming the accuracy of the
representations and warranties of the Investor and all other purchasers of
Common Stock in the Offering, will be issued in accordance with a valid
exemption from the registration or qualification provisions of the Securities
Act, and any applicable state securities laws (the "STATE ACTS").
(f) Exchange Act Filing. During the 12 calendar months immediately
preceding the date of this Agreement, all reports and statements required to be
filed by the Company with the Securities and Exchange Commission (the
"COMMISSION") under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and the rules and regulations thereunder, have been timely
filed. Such filings, together with all documents incorporated by reference
therein, are referred to as "EXCHANGE ACT DOCUMENTS." Each Exchange Act
Document, as amended, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations thereunder, and no Exchange Act
Document, as amended, at the time each such document was filed, included any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(g) Company Financial Statements. The audited financial statements,
together with the related notes of the Company at December 31, 2005, included in
the Company's Annual Report on Form 10-KSB for the fiscal year ended December
31, 2005 as filed with the Commission (the "COMPANY FINANCIAL STATEMENTS"),
fairly present in all material respects, on the basis stated therein and on the
date thereof, the financial position of the Company at the respective dates
therein specified and its results of operations and cash flows for the periods
then ended. Such statements and related notes have been prepared in accordance
with generally accepted accounting principles in the United States applied on a
consistent basis except as expressly noted therein.
(h) No Material Liabilities. Except for liabilities or obligations
not individually in excess of $100,000, and as set forth in the Exchange Act
Documents, since December 31, 2005, the Company has not incurred any material
liabilities or obligations, direct or contingent, except in the ordinary course
of business and except for liabilities or obligations reflected or reserved
against on the Company's balance sheet as of December 31, 2005, and there has
not been any change, or to the knowledge of the Company, development or effect
(individually or in the aggregate) that is or is reasonably likely to be,
materially adverse to the condition (financial or otherwise), business,
prospects, or results of operations of the Company and the Subsidiaries
considered as a whole (a "MATERIAL ADVERSE EFFECT") or any change in the capital
or material increase in the long-term debt of the Company, nor has the Company
declared, paid, or made any dividend or distribution of any kind on its capital
stock.
(i) No Disputes Against Company. There is no material pending or, to
the knowledge of the Company, threatened (i) action, suit, claim, proceeding, or
investigation against the Company, at law or in equity, or before or by any
Federal, state, municipal, or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, (ii) arbitration
proceeding against the Company, (iii) governmental inquiry against the Company
or (iv) any action or suit by or on behalf of the Company pending or threatened
against others.
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(j) Approvals. The execution, delivery, and performance by the
Company of this Agreement and the offer and sale of the shares require no
consent of, action by or in respect of, or filing with, any person, governmental
body, agency, or official other than those consents that have been obtained
prior to the Closing and those filings required to be made pursuant to the
Securities Act and any State Acts which the Company undertakes to file within
the applicable time period.
(k) Compliance. Neither the Company nor MMC, nor any their
respective Subsidiaries, (i) is in default under or in violation of (and no
event has occurred that has not been waived that, with notice or lapse of time
or both, would result in a default by the Company nor MMC, or any of their
respective Subsidiaries under), nor has the Company nor MMC, or any of their
respective Subsidiaries received notice of a claim that it is in default under
or that it is in violation of, any indenture, loan or credit agreement, or any
other agreement or instrument to which it is a party or by which it or any of
its properties is bound (whether or not such default or violation has been
waived), (ii) is in violation of any order of any Court, arbitrator, or
governmental body or (iii) is or has been in violation of any statute, rule or
regulation of any governmental authority, including without limitation all
foreign, federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety and
employment and labor matters, except in each case as could not, individually or
in the aggregate, have or reasonably be expected to result in a Material Adverse
Effect. The Company is in compliance with the applicable requirements of the
Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and regulations
thereunder, except where such noncompliance could not have or reasonably be
expected to result in a Material Adverse Effect.
(l) Patents and Trademarks. The Company and MMC, or any of their
respective Subsidiaries have, or have rights to use, all patents, patent
applications, trademarks, trademark applications, service marks, trade names,
copyrights, licenses, and other similar rights that are necessary or material
for use in connection with their respective businesses as described in the
Exchange Act Documents and which the failure to so have could, individually or
in the aggregate, have or reasonably be expected to result in a Material Adverse
Effect (collectively, the "INTELLECTUAL PROPERTY RIGHTS"). Neither the Company
nor MMC, or any of their respective Subsidiaries, has received a written notice
that the Intellectual Property Rights used by the Company or MMC, or any of
their respective Subsidiaries, violates or infringes upon the rights of any
person. Except as set forth in the Exchange Act Documents, to the knowledge of
the Company, all such Intellectual Property Rights are enforceable and there is
no existing infringement by another person of any of the Intellectual Property
Rights, except where such infringement could not have or reasonably be expected
to result in a Material Adverse Effect.
(m) Transactions With Affiliates and Employees. Except as set forth
in the Exchange Act Documents, none of the officers or directors of the Company
and, to the knowledge of the Company, none of the employees of the Company is
presently a party to any transaction with the Company or any Subsidiary (other
than for services as employees, officers, and directors), including any
contract, agreement, or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any officer, director, or such
employee or, to the knowledge of the Company, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer,
director, trustee, or partner.
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(n) Internal Accounting Controls. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management's general
or specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company has established disclosure
controls and procedures (as defined in Exchange Act rules 13a-15(e) and
15d-15(e)) for the Company and designed such disclosure controls and procedures
to ensure that material information relating to the Company and its Subsidiaries
is made known to the Company's certifying officers by others within those
entities, particularly during the period in which the Company's Form 10-KSB or
10-QSB, as the case may be, are being prepared. The Company's certifying
officers have evaluated the effectiveness of the Company's controls and
procedures as of the end of the reporting period covered by the Company's Form
10-KSB and each of the Company's Forms 10-QSB filed with the Commission (each
such date, the "EVALUATION DATE") and presented in each such report their
conclusions about the effectiveness of the Company's disclosure controls and
procedures based on their evaluations as of the applicable Evaluation Date.
Since the Evaluation Date of the Company's most recently filed Form 10-KSB or
Form 10-QSB, there have been no significant changes in the Company's disclosure
controls and procedures, the Company's internal control over financial reporting
(as defined in Exchange Act Rules 13a-15(f) or 15d-15(f) or, to the Company's
knowledge, in other factors that could significantly affect the Company's
internal controls over financial reporting.
(o) Solvency. Based on the financial condition of the Company as of
the Closing Date (and assuming that the Closing shall have occurred), (i) the
Company's fair saleable value of its assets exceeds the amount that will be
required to be paid on or in respect of the Company's existing debts and other
liabilities (including known contingent liabilities) as they mature; (ii) the
Company's assets do not constitute unreasonably small capital to carry on its
business for the current fiscal year as now conducted and as proposed to be
conducted including its capital needs taking into account the particular capital
requirements of the business conducted by the Company, and projected capital
requirements and capital availability thereof; and (iii) the current cash flow
of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of
the cash, would be sufficient to pay all amounts on or in respect of its debt
when such amounts are required to be paid. The Company does not intend to incur
debts beyond its ability to pay such debts as they mature (taking into account
the timing and amounts of cash to be payable on or in respect of its debt).
(p) Certain Fees. Other than the cash commission payable on the
closing as indicated in the Confidential Private Placement Memorandum provided
to Investor in connection with the Offering, no brokerage or finder's fees or
commissions are or will be payable by the Company to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank, or
other person with respect to the transactions contemplated by this Agreement.
The Investor shall have no obligation with respect to any claims (other than
such fees or commissions owed by an Investor pursuant to written agreements
executed by the Investor which fees or commissions shall be the sole
responsibility of such Investor) made by or on behalf of other persons for fees
of a type contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement.
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(q) Certain Registration Matters. Assuming the accuracy of the
Investor's representations and warranties set forth in this Agreement and the
Transaction Documents and the representations and warranties made by all other
purchasers of shares of Common Stock in the Offering, no registration under the
Securities Act is required for the offer and sale of the Investor's Shares by
the Company to the Investor hereunder.
(r) Listing and Maintenance Requirements. The Company is, and has no
reason to believe that it will not in the foreseeable future continue to be, in
compliance with the listing and maintenance requirements for continued listing
of the Common Stock on the NASD Over the Counter Bulletin Board.
(s) Investment Company. The Company and MMC are not, and are not an
"affiliate" of, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(t) No Additional Agreements. The Company and MMC do not have any
agreement or understanding with any other purchasers of the shares in the
Offering with respect to the transactions contemplated by this Agreement on
terms that differ substantially from those set forth in this Agreement.
(u) Disclosure. The Company and MMC confirm that neither they nor
any person acting on their behalf has provided the Investor, or its agents or
counsel, with any information that the Company or MMC believes would constitute
material, non-public information following the announcement of the Closing and
the transactions contemplated thereby. The Company understands and confirms that
the Investor will rely on the foregoing representations and covenants in
effecting transactions in securities of the Company. All disclosure provided to
the Investor regarding the Company and MMC, their respective businesses and the
transactions contemplated hereby, furnished by or on behalf of the Company or,
as applicable, MMC (including the Company's and MMC's representations and
warranties set forth in this Agreement) are true and correct and do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
5. Representations and Warranties of the Investor. In order to induce the
Company to enter into this Agreement, the Investor represents and warrants to
the Company and MMC the following:
(a) Authority. If a corporation, partnership, limited partnership,
limited liability company, or other form of entity, the Investor is duly
organized or formed, as the case may be, validly existing, and in good standing
under the laws of its jurisdiction of organization or formation, as the case may
be. The Investor has all requisite individual or entity right, power, and
authority to execute, deliver, and perform this Agreement.
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(b) Enforceability. The execution, delivery, and performance of this
Agreement by the Investor have been duly authorized by all requisite
partnership, corporate or other entity action, as the case may be. This
Agreement has been duly executed and delivered by the Investor, and, upon its
execution by the Company, shall constitute the legal, valid, and binding
obligation of the Investor, enforceable in accordance with its terms, except to
the extent that its enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium, or other laws relating to or affecting the
enforcement of creditors' rights generally and by general principles of equity.
(c) No Violations. The execution, delivery, and performance of this
Agreement by the Investor do not and will not, with or without the passage of
time or the giving of notice, result in the breach of, or constitute a default,
cause the acceleration of performance, or require any consent under, or result
in the creation of any lien, charge or encumbrance upon any property or assets
of the Investor pursuant to, any material instrument or agreement to which the
Investor is a party or by which the Investor or its properties may be bound or
affected, and, do not or will not violate or conflict with any provision of the
articles of incorporation or bylaws, partnership agreement, operating agreement,
trust agreement, or similar organizational or governing document of the
Investor, as applicable.
(d) Knowledge of Investment and its Risks. The Investor has
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of Investor's investment in the shares of common
stock. The Investor understands that an investment in the Company represents a
high degree of risk and there is no assurance that the Company's business or
operations will be successful. The Investor has considered carefully the risks
attendant to an investment in the Company, and that, as a consequence of such
risks, the Investor could lose Investor's entire investment in the Company.
(e) Investment Intent. The Investor hereby represents and warrants
that (i) the Investor's Shares are being acquired for investment for the
Investor's own account, and not as a nominee or agent and not with a view to the
resale or distribution of all or any part of the Investor's Shares, and the
Investor has no present intention of selling, granting any participation in, or
otherwise distributing any of the Investor's Shares within the meaning of the
Securities Act, (ii) the Investor's Shares are being acquired in the ordinary
course of the Investor's business, and (iii) the Investor does not have any
contracts, understandings, agreements, or arrangements, directly or indirectly,
with any person and/or entity to distribute, sell, transfer, or grant
participations to such person and/or entity with respect to, any of the
Investor's Shares. The Investor is not purchasing the Investor's Shares as a
result of any advertisement, article, notice or other communication regarding
the Investor's Shares published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar or any other
general solicitation or general advertisement.
(f) Investor Status. The Investor is an "accredited investor" as
that term is defined by Rule 501 of Regulation D promulgated under the
Securities Act and the information provided by the Investor in the Investor
Questionnaire, attached hereto as Appendix A, is truthful, accurate, and
complete. The Investor is not registered as a broker-dealer under Section 15 of
the Exchange Act or an affiliate of such broker-dealer.
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(g) Disclosure. The Investor has reviewed the information provided
to the Investor by the Company in connection with the Investor's decision to
purchase the Investor's Shares, including the Company's Confidential Private
Placement Memorandum distributed in connection with the Offering and the
Company's publicly available filings with the Commission and the information
contained therein. The Company has provided the Investor with all the
information that the Investor has requested in connection with the decision to
purchase the Investor's Shares. The Investor further represents that the
Investor has had an opportunity to ask questions and receive answers from the
Company regarding the business, properties, prospects, and financial condition
of the Company. All such questions have been answered to the full satisfaction
of the Investor. Neither such inquiries nor any other investigation conducted by
or on behalf of the Investor or its representatives or counsel shall modify,
amend, or affect the Investor's right to rely on the truth, accuracy, and
completeness of the disclosure materials and the Company's representations and
warranties contained herein.
(h) No Registration. The Investor understands that Investor may be
required to bear the economic risk of Investor's investment in the Company for
an indefinite period of time. The Investor further understands that (i) neither
the offering nor the sale of the Investor's Shares has been registered under the
Securities Act or any applicable State Acts in reliance upon exemptions from the
registration requirements of such laws, (ii) the Investor's Shares must be held
by the Investor indefinitely unless the sale or transfer thereof is subsequently
registered under the Securities Act and any applicable State Acts, or an
exemption from such registration requirements is available, (iii) except as set
forth in the Registration Rights Agreement, dated as of the date hereof, between
the Company and the Investor, the Company is under no obligation to register any
of the shares of Common Stock underlying the Investor's Shares on the Investor's
behalf or to assist the Investor in complying with any exemption from
registration, and (iv) the Company will rely upon the representations and
warranties made by the Investor in this Agreement and the Transaction Documents
in order to establish such exemptions from the registration requirements of the
Securities Act and any applicable State Acts.
(i) Transfer Restrictions. The Investor will not transfer any of the
Investor's Shares unless such transfer is registered or exempt from registration
under the Securities Act and such State Acts, and, if requested by the Company
in the case of an exempt transaction, the Investor has furnished an opinion of
counsel reasonably satisfactory to the Company that such transfer is so exempt.
The Investor understands and agrees that (i) the certificates evidencing the
shares of Common Stock underlying the Investor's Shares will bear appropriate
legends indicating such transfer restrictions placed upon the shares of common
stock, (ii) the Company shall have no obligation to honor transfers of any of
the Investor's Shares in violation of such transfer restrictions, and (iii) the
Company shall be entitled to instruct any transfer agent or agents for the
securities of the Company to refuse to honor such transfers.
(j) No Solicitation. Other than the Confidential Private Placement
Memorandum, the Investor (i) did not receive or review any advertisement,
article, notice or other communication published in a newspaper or magazine or
similar media or broadcast over television or radio, whether closed circuit, or
generally available, with respect to the shares or (ii) was not solicited by any
person with respect to a purchase of the shares.
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(k) Principal Address. The Investor's principal residence, if an
individual, or principal executive office, if an entity, is set forth on the
signature page of this Subscription Agreement.
6. Independent Nature of Investor's Obligations and Rights. The
obligations of the Investor under this Agreement and the Transaction Documents
are several and not joint with the obligations of any other purchaser of shares
in the Offering, and the Investor shall not be responsible in any way for the
performance of the obligations of any other purchaser of shares in the Offering
under any Transaction Document. The decision of the Investor to purchase the
Investor's Shares pursuant to the Transaction Documents has been made by the
Investor independently of any other purchaser of shares in the Offering. Nothing
contained herein or in any Transaction Document, and no action taken by any
purchaser of shares pursuant thereto, shall be deemed to constitute such
purchasers as a partnership, an association, a joint venture, or any other kind
of entity, or create a presumption that the purchasers of shares are in any way
acting in concert or as a group with respect to such obligations or the
transactions contemplated by the Transaction Documents. The Investor
acknowledges that no other purchaser of shares has acted as agent for the
Investor in connection with making its investment hereunder and that no other
purchaser of shares will be acting as agent of the Investor in connection with
monitoring its investment in the shares or enforcing its rights under the
Transaction Documents. The Investor shall be entitled to independently protect
and enforce its rights, including without limitation the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall not be
necessary for any other purchaser of shares to be joined as an additional party
in any proceeding for such purpose.
7. Prospectus Delivery Requirement. The Investor hereby covenants with the
Company not to make any sale of the Investor's Shares without complying with the
provisions hereof and of the Registration Rights Agreement, and without
effectively causing the prospectus delivery requirement under the Securities Act
to be satisfied (unless the Investor is selling in a transaction not subject to
the prospectus delivery requirement).
8. Shareholder Approval. The Company represents and warrants to the
Investor that a vote of the stockholders of the Company will not be required to
approve the issuance of the Investor's Shares.
9. Indemnification of Investor. In addition to the indemnity provided in
the Registration Rights Agreement, the Company will indemnify and hold the
Investor and its directors, officers, shareholders, members, managers, partners,
employees and agents (each, an "INVESTOR PARTY") harmless from any and all
losses, liabilities, obligations, claims, contingencies, damages, costs and
expenses, including all judgments, amounts paid in settlements, court costs, and
reasonable attorneys' fees and costs of investigation (collectively, "Losses")
that any such Investor Party may suffer or incur as a result of or relating to
any misrepresentation, breach, or inaccuracy of any representation, warranty,
covenant, or agreement made by the Company in any Transaction Document. In
addition to the indemnity contained herein, the Company will reimburse each
Investor Party for its reasonable legal and other expenses (including the cost
of any investigation, preparation, and travel in connection therewith) incurred
in connection therewith, as such expenses are incurred.
10
10. Non-Public Information. Subsequent to the Closing, the Company
covenants and agrees that neither it nor any other person acting on its behalf
will provide Investor or its agents or counsel with any information that the
Company believes constitutes material non-public information, unless prior
thereto Investor shall have executed a written agreement regarding the
confidentiality and use of such information.
11. Further Assurances. The parties hereto will, upon reasonable request,
execute and deliver all such further assignments, endorsements and other
documents as may be necessary in order to perfect the purchase by the Investor
of the Investor's Shares. In addition, the Company agrees that it will do all
such acts necessary to ensure that Canadian residents holding shares will be
able to trade such securities without resale restrictions under Canadian
securities legislation within four months from the Merger Effective Date,
including, if necessary, all acts in order for the Company to become a reporting
issuer in a Canadian province or territory, which may include the filing and
receipting of a prospectus by Canadian securities regulatory authorities.
12. Entire Agreement; No Oral Modification. This Agreement and the other
Transaction Documents contain the entire agreement among the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings with respect thereto and this Agreement may not be amended or
modified except in a writing signed by both of the parties hereto.
13. Binding Effect; Benefits. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, successors
and assigns; however, nothing in this Agreement, expressed or implied, is
intended to confer on any other person other than the parties hereto, or their
respective heirs, successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
14. Counterparts. This Agreement may be executed in any number of
counterparts, for each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument. In the event
that any signature is delivered by facsimile transmission, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such facsimile
signature page were an original thereof.
15. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the United States of America and the
State of New York, both substantive and remedial, without regard to New York
conflicts of law principles. Any judicial proceeding brought against either of
the parties to this agreement or any dispute arising out of this Agreement or
any matter related hereto shall be brought in the courts of the State of New
York, New York County, or in the United States District Court for the Southern
District of New York and, by its execution and delivery of this agreement, each
party to this Agreement accepts the jurisdiction of such courts.
16. Prevailing Parties. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party shall be entitled to receive and the
nonprevailing party shall pay upon demand reasonable attorneys' fees in addition
to any other remedy.
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17. Notices. All communication hereunder shall be in writing and shall be
mailed, delivered, telegraphed or sent by facsimile or electronic mail, and such
delivery shall be confirmed to the addresses as provided below:
if to the Investor:
to the address set forth on the signature page of this Agreement
if to the Company:
High Tide Ventures, Inc.
000 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxx. X.X., Xxxxxx X0X 0X0
Attention: Xxxxx Xxxxxx, President and Chief Executive Officer
Facsimile: (000) 000-0000
with copy to:
Gottbetter & Partners, LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
if to MMC, to:
MMC Energy North America, LLC
00 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Chief Executive Officer
Facsimile: (000) 000-0000
with copy to:
McGuireWoods LLP
1345 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
18. Headings. The section headings herein are included for convenience
only and are not to be deemed a part of this Agreement.
[SIGNATURE PAGES FOLLOW]
12
IN WITNESS WHEREOF, the parties hereto have executed this Subscription
Agreement as of the date first written above.
HIGH TIDE VENTURES, INC.
By: _______________________
Name: Xxxxx Xxxxxx
Its: President and Chief Executive
Officer
[SIGNATURE PAGES OF MMC AND INVESTOR FOLLOW]
13
IN WITNESS WHEREOF, the parties hereto have executed this Subscription
Agreement as of the date first written above.
MMC ENERGY NORTH AMERICA, LLC
By: _________________________
Name: Xxxx X. Xxxxxx
Its: Chief Executive Officer
[SIGNATURE PAGE OF INVESTOR FOLLOWS]
14
IN WITNESS WHEREOF, the parties hereto have executed this Subscription
Agreement as of the date first written above.
INVESTOR (individual) INVESTOR (entity)
_____________________________________ _______________________________
Signature Name of Entity
_____________________________________ _______________________________
Print Name Signature
Address of Principal Residence:
Print Name:____________________
_____________________________________
_____________________________________ Title:_________________________
_____________________________________
Social Security Number: Address of Executive Offices:
_____________________________________
_______________________________
Telephone Number: _______________________________
_____________________________________ _______________________________
Facsimile Number: IRS Tax Identification Number:
_____________________________________ _______________________________
Telephone Number:
_______________________________
Facsimile Number:
_______________________________
$1.00
_________________ X _______________ = $_________________
Number of Shares Price per Share Purchase Price
15
APPENDIX A
Investor Questionnaire
(See Attached)
