Contract
Form of
Subscription Agreement between the Company and the investors in the Company’s
December 2008 offering of Units consisting of Notes and Warrants
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SUBSCRIPTION
DOCUMENTS
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December
1, 2008
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SUBSCRIPTION
INSTRUCTIONS
IMPORTANT: PLEASE
READ THE ATTACHED SUBSCRIPTION AGREEMENT CAREFULLY BEFORE COMPLETING AND SIGNING
IT. THERE ARE SIGNIFICANT REPRESENTATIONS CONTAINED IN THE
SUBSCRIPTION AGREEMENT.
All subscribers must complete and
execute the documents contained in this booklet in accordance with the
instructions set forth below. Any questions you may have concerning
these documents should be directed to Xxxxxxx Xxxxxxxxx, telephone (000)
000-0000.
INSTRUCTIONS
1. Fill in the requested
information and Sign the
Subscription Agreement.
2. Fill in the Investor
Information form attached as Annex A to the Subscription
Agreement.
3. Individual
Investors – Fill in and
Sign the Certificate for
Individual Investors attached as Annex B to the Subscription
Agreement.
4. Entity
Investors - Fill in and
Sign the Certificate for
Entity Investors attached as Annex C to the Subscription
Agreement.
5. Fax
all forms to Xxxxxxx Xxxxxxxxx at (000) 000-0000 and then Send all signed
original documents with a check (if applicable) to:
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx
Xxxxxxxxx
6. Please
make your subscription payment payable to the order of “SIGNATURE BANK – AS
ESCROW AGENT FOR ANPATH GROUP, INC.”
To wire
funds directly see the following instructions:
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Bank
Name:
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Signature
Bank
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Bank
Address:
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000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
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Acct.
Name:
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Signature
Bank as Escrow Agent for ANPATH GROUP, INC.
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ABA
Number:
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000000000
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A/C
Account #:
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1501156309
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FBO:
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Investor
Name
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Social
Security or EIN Number
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Address
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Each
investor who executes a Subscription Agreement and the other documents contained
in this package (individually an “Investor”
and collectively, the “Investors”)
will purchase the number of units (the “Units”)
set forth on the signature page to such Subscription Agreement at a purchase
price of $10,000 per Unit. Each Unit consists of one (1) 8%
Subordinated Convertible Promissory Note (a “Note”)
and a five (5) year warrant (a “Warrant”),
exercisable for the purchase of 20,000 shares of the Company’s common stock, par
value $0.0001 per share (the “Common
Stock”). Subscriptions for the Units will be made in
accordance with and subject to the terms and conditions of the Subscription
Agreement. The Units are being offered (the “Offering”)
on a “best efforts” all or none basis up to 50 Units (the “Minimum
Amount”) and thereafter on a reasonable efforts basis up to 500 Units
($5,000,000)
(the “Maximum
Amount”). The minimum investment amount that may be purchased
by an Investor is one Unit ($10,000) (the “Minimum
Investor Purchase”); provided however, the Company may in its sole
discretion, accept an Investor subscription for an amount less than the Minimum
Investor Purchase.
The Offering is being made solely to
“accredited investors” (as defined in Rule 501 of Regulation D promulgated under
the Securities Act of 1933, as amended (the “Securities
Act”)).
All subscription funds will be held in
the Company’s non-interest bearing escrow account at Signature Bank, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Offering will terminate on or
before December 31, 2008 (the “Initial
Offering Period”), which period may be extended by the Company to a date
no later than February 20, 2009 (the “Termination
Date”, with this additional period, together with the Initial Offering
Period, being referred to as the “Offering
Period”). The Company may hold an initial closing (“Initial
Closing”) at any time after the receipt of accepted subscriptions equal
to the Minimum Amount on or prior to the Termination Date. After the
Initial Closing, subsequent closings with respect to additional Units may take
place at any time, as determined jointly by the Company (each such closing,
together with the Initial Closing, being referred to as a “Closing”). In
the event that a Closing is not held prior to the Termination Date, the Company
will refund all subscription funds, without deduction and/or interest accrued
thereon, and will return the subscription documents to each
subscriber.
If the Company rejects a subscription,
either in whole or in part (which decision is in its sole discretion), the
rejected subscription funds or the rejected portion thereof will be returned
promptly to such subscriber without interest accrued thereon.
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SUBSCRIPTION
AGREEMENT
This
SUBSCRIPTION AGREEMENT (this “Agreement”)
is made and entered into as of [________________], 200__, by and between Anpath
Group, Inc., a Delaware corporation (the “Company”)
and the investor identified on the signature page to this Agreement (the “Investor”).
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A.
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WHEREAS, pursuant to the
Company’s Confidential Private Placement Memorandum, dated December 1,
2008, the Company is offering (the “Offering”),
upon the terms and conditions stated in this Agreement, a minimum of 50
units (the “Minimum
Amount”) and a maximum of 500 units (the “Maximum
Amount”); at a purchase price of $10,000 per unit (each, a “Unit”),
each Unit consisting of:
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(a)
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one
8% subordinated convertible promissory note (a “Note”)
convertible into shares (the “Conversion
Shares”) of common stock of the Company, par value $0.0001 per
share (the “Common
Stock”); and
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(b)
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a
warrant (the “Warrant”)
to purchase 20,000 shares of Common Stock at an exercise price of $0.75
per share (the “Warrant
Shares”);
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B.
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WHEREAS, the Units,
Notes, Conversion Shares, Warrants and Warrant Shares issued pursuant to
this Agreement are collectively referred to herein as the “Securities;”
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C.
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WHEREAS, the Company may
engage registered broker dealers and other persons (“Selling
Agents”) to offer and sell Units in the Offering and may xxx to
such Selling Agents the compensation disclosed in the
Memorandum;
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D.
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WHEREAS, contemporaneous
with the sale of the Units, the parties hereto will execute and deliver a
Registration Rights Agreement, substantially in the form attached as
Exhibit D to the Memorandum (the “Registration
Rights Agreement”), pursuant to which the Company will agree to
provide certain registration rights with respect to the Conversion Shares
and the Warrant Shares under the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, and applicable state
securities laws.
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NOW, THEREFORE, in
consideration of the mutual terms, conditions and other agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree to the sale and purchase of the Units as
set forth herein.
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Definitions
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For
purposes of this Agreement, the terms set forth below shall have the
corresponding meanings provided below.
.1 “Affiliate” means, with respect to any
specified Person:
.1 if
such Person is an individual, the spouse of that Person and, if deceased or
disabled, his heirs, executors, or legal representatives, if applicable, or any
trusts for the benefit of such individual or such individual’s spouse and/or
lineal descendants, or
.2 otherwise,
another Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, the Person
specified. As used in this definition, “control” shall mean the
possession, directly or indirectly, of the power to cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities or by contract or other written instrument.
.2 “Business Day” means any day on which banks
located in New York City are not required or authorized by law to remain
closed.
.3 “Closing” and “Closing Date” as defined in Section
2.7.
.4 “Common Stock” as defined in the recitals
above.
.5 “Company Financial
Statements” as defined
in Section
6.5
hereto.
.6 “Company’s
knowledge” means the
information and/or other items that the executive officers (as defined in Rule
405 under the Securities Act) of the Company have actual knowledge
of after due inquiry.
.7 “Escrow Account” means the Company’s non-interest
bearing account at Signature Bank, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the “Escrow
Agent”).
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.8 “Escrow Agreement” means the Escrow Agreement, dated
November 26, 2008, by and among the Company and the Escrow
Agent.
.9 “Exchange Act” means the Securities Exchange Act
of 1934, as amended.
.10 “Final Closing
Date” as defined in
Section
2.7.
.11 “Initial Closing” as defined in Section
2.7.
.12 “Investor
Certification” as
defined in Section
2.6.
.13 “Liens” means any mortgage, lien, title
claim, assignment, encumbrance, security interest, adverse claim, contract of
sale, restriction on use or transfer or other defect of title of any
kind.
.14 “Material Adverse
Effect” means a material
adverse effect on, and a “Material Adverse
Change” means a material
adverse change in:
.1 the
assets, liabilities, results of operations, condition (financial or otherwise),
business, or prospects of the Company and its Subsidiaries taken as a whole;
or
.2 the
ability of the Company to perform its obligations under the Transaction
Documents,
but, to
the extent applicable, shall exclude any circumstance, change or effect to the
extent resulting or arising from: (i) any change in general economic conditions
in the industries or markets in which the Company and its Subsidiaries operate
so long as the Company and its Subsidiaries are not disproportionately (in a
material manner) affected by such changes; (ii) national or international
political conditions, including any engagement in hostilities, whether or not
pursuant to the declaration of a national emergency or war, or the occurrence of
any military or terrorist attack so long as the Company and its Subsidiaries are
not disproportionately (in a material manner) affected by such changes; (iii)
changes in United States generally accepted accounting principles, or the
interpretation thereof; or (iv) the entry into or announcement of this
Agreement, actions contemplated by this Agreement, or the consummation of the
transactions contemplated hereby.
.15 “Maximum Amount” as defined in the recitals
above.
.16 “Minimum Amount” as defined in the recitals
above.
.17 “Person” shall mean an individual, entity,
corporation, partnership, association, limited liability company, limited
liability partnership, joint-stock company, trust or unincorporated
organization.
.18 “Memorandum” means the Company’s Confidential
Private Placement Memorandum, dated December 1, 2008, together with any and all
amendments and/or supplements thereto.
.19 “Regulation D” as defined in Section
4.11 hereto.
.20 “Registration Rights
Agreement” as defined in
the recitals above.
.21 “Rule 144” as defined in Section
4.10(c) hereto.
.22 “SEC” means the United States Securities
and Exchange Commission.
.23 “SEC Reports” means all reports, schedules,
forms, statements and other documents required to be filed by the Company with
the SEC pursuant to the reporting requirements of the Exchange Act since
December 31, 2008.
.24 “Securities” as defined in the recitals
above.
.25 “Securities Act” means the Securities Act of 1933,
as amended.
.26 “Selling Agents” as define in the recitals
above.
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.27 “Shares” as defined in the recitals
above.
.28 “Subsidiaries” shall mean any corporation or other
entity or organization, whether incorporated or unincorporated, in which the
Company owns, directly or indirectly, any controlling equity or other
controlling ownership interest or otherwise controls through contract or
otherwise.
.29 “Transaction
Documents” shall mean
this Agreement, the Memorandum, the Registration Rights Agreement, the Warrants
and the Escrow Agreement.
.30 “Transfer” shall mean any sale, transfer,
assignment, conveyance, charge, pledge, mortgage, encumbrance, hypothecation,
security interest or other disposition, or to make or effect any of the
above.
.31 “Warrant Shares” as defined in the recitals
above.
.32 “Warrants” as defined in the recitals
above.
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Sale
and Purchase of Units.
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.33 Subscription
for Units. Subject to
the terms and conditions of this Agreement, the undersigned Investor hereby
subscribes for and agrees to purchase the number of Units set forth on the
signature page to this Subscription Agreement, at a purchase price of $10,000
per Unit.
.34 Terms of
the Securities. The
terms of the Notes are as described in the form of Note attached to the
Memorandum as Exhibit B
and the terms of the Warrants are as described in the form of Warrant attached
to the Memorandum as Exhibit C.
.35 Payment. The Investor encloses
herewith a check payable to, or will immediately make a wire transfer payment
to, “Signature Bank, as Escrow Agent for Anpath Group, Inc.,” in the full amount
of the purchase price of the Units being subscribed for.
.36 Deposit
of Funds. All
payments made as provided in Section
2.3 hereof will be
deposited by the Company in the Company’s Escrow Account. In the
event that the Company does not effect a Closing (as defined below), on or
before December 31, 2008 (the “Initial Offering
Period”), which period
may be extended by the Company in its sole discretion to a date no later than
February 20, 2009 (the “Termination Date”, with this additional period,
together with the Initial Offering Period, being referred to herein as the
“Offering
Period”), the Company
will refund all subscription funds, without deduction and/or interest accrued
thereon, and will return the subscription documents to the
Investor.
.37 Acceptance
of Subscription. The
Investor understands and agrees that the Company, in its sole discretion,
reserves the right to accept or reject this or any other subscription for the
Units, in whole or in part, notwithstanding prior receipt by the Investor of
notice of acceptance of this or any other subscription. The Company
will have no obligation hereunder until the Company executes and delivers to the
Investor an executed signature page to this Subscription
Agreement. If an Investor’s subscription is rejected in whole or the
Offering is terminated, all funds received from the Investor will be returned
without interest, penalty, expense or deduction, and this Subscription Agreement
will thereafter be of no further force or effect. If an Investor’s
subscription is rejected in part, the funds for the rejected portion of such
subscription will be returned without interest, penalty, expense or deduction,
and this Subscription Agreement will continue in full force and effect to the
extent such subscription was accepted.
.38 Closing
Deliveries. Together
with the check for, or wire transfer of, the full purchase price, the Investor
is delivering a completed and executed signature page to this Agreement and a
completed investor certification attached hereto as Annex B or Annex C as applicable (the “Investor
Certification”).
.39 Closings. The Company may hold an
initial closing (“Initial Closing”) at any time after the receipt of
accepted subscriptions prior to the Termination Date equal to the Minimum
Amount. After the Initial Closing, subsequent Closings with respect
to additional Units may take place at any time, as determined by the Company,
with respect to subscriptions accepted prior to the Termination Date (each such
closing, together with the Initial Closing, being referred to as a “Closing”). The date of each
Closing shall be referred to herein as a “Closing Date” and the date of the final Closing
shall be referred to herein as the “Final Closing
Date.”
.40 Offering
to Accredited Investors. This Offering is limited
to accredited investors as defined in Section 2(15) of the Securities Act, and
Rule 501 under Regulation D, and is being made without registration under the
Securities Act in reliance upon the exemptions contained in Sections 4(2) of the
Securities Act, Rule 506 under Regulation D and applicable state securities
laws.
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Acknowledgements
of the Investor.
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The
undersigned Investor hereby acknowledges that:
.41 Resale
Restrictions. None
of the Securities have been registered under the Securities Act, or under any
state securities or “blue sky” laws of any state of the United States, and,
unless so registered, none of the Securities may be offered or sold by the
Investor except pursuant to an effective registration statement under the
Securities Act, or pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and in each case
only in accordance with applicable state securities laws.
.42 Legends
on Notes, Conversion Shares, Warrants and Warrant Shares. The Investor understands
that, certificates evidencing the Notes, the Conversion Shares, the Warrants and
Warrant Shares shall bear a restrictive legend in substantially the following
form (and a stop-transfer order may be placed against transfer of the
certificates evidencing such Conversion Shares and Warrant
Shares):
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A
FORM ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER
SAID ACT.”
If
required by the authorities of any state in connection with the issuance or sale
of the Notes, the Conversion Shares, the Warrants or any Warrant Shares, the
certificates will also bear any legend required by such state
authority.
.43 Agreements. It has received and
carefully read each of the Transaction Documents.
.44 Independent
Advice. The Investor
has been advised to consult the Investor’s own legal, tax and other advisors
with respect to the merits and risks of an investment in the Securities and with
respect to applicable resale restrictions, and it is solely responsible (and
neither the Company nor the Selling Agents, if any, is in any way, directly
and/or indirectly, responsible) for compliance with:
.1 any
applicable laws of the jurisdiction in which the Investor is resident in
connection with the distribution of the Securities hereunder, and
.2 applicable
resale restrictions.
.45 No
Insurance. There is
no government or other insurance covering any of the
Securities.
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Representations,
Warranties and Acknowledgments of the Investor.
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The
undersigned Investor hereby represents and warrants to the Company
that:
.46 Capacity. The Investor: (i) if a
natural person, represents that the Investor has reached the age of 21 and has
full authority, legal capacity and competence to enter into, execute and deliver
this Agreement and the Transaction Documents to which the Investor is a party
and all other related agreements or certificates and to take all actions
required pursuant hereto and thereto and to carry out the provisions hereof and
thereof and, (ii) if a corporation, partnership, or limited liability company or
partnership, or association, joint stock company, trust, unincorporated
organization or other entity, represents that such entity was not formed for the
specific purpose of acquiring the Units, such entity is duly organized, validly
existing and in good standing under the laws of the state of its organization,
such entity has full power and authority to execute and deliver this Agreement,
the Transaction Documents to which it is a party and all other related
agreements or certificates and to take all actions required pursuant hereto and
thereto and to carry out the provisions hereof and thereof and to purchase and
hold the Units, the execution and delivery of this Agreement and the Transaction
Documents to which it is a Party have been duly authorized by all necessary
action; or (iii) if executing this Agreement in a representative or fiduciary
capacity, represents that it has full power and authority to execute and deliver
this Agreement and the Transaction Documents to which it is a Party in such
capacity and on behalf of the subscribing individual, xxxx, partnership, trust,
estate, corporation, or limited liability company or partnership, or other
entity for whom the Investor is executing this Agreement and the Transaction
Documents, and such individual, partnership, xxxx, trust, estate, corporation,
or limited liability company or partnership, or other entity has full right and
power to perform pursuant to this Agreement and the Transaction Documents to
which it is a party and make an investment in the Company.
.47 No
Violation of Corporate Governance Documents. If the Investor is a
corporation or other entity, the entering into of this Agreement and the other
Transaction Documents to which it is a party and the transactions contemplated
hereby and thereby do not and will not result in the violation of any of the
terms and provisions of any law applicable to, or the charter or other
organizational documents, bylaws or other constating documents of, the Investor
or of any agreement, written or oral, to which the Investor may be a party or by
which the Investor is or may be bound.
.48 Binding
Agreement. The
Investor has duly executed and delivered this Agreement and the other
Transaction Documents to which it is a party, and this Agreement and the other
Transaction Documents constitute a valid and binding agreement of the Investor
enforceable against the Investor in accordance with their respective terms,
except as such enforceability may be limited by general principals of equity, or
to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
and other similar laws relating to, or affecting generally, the enforcement of
applicable creditors’ rights and remedies.
.49 No SEC
Review or Approval. Neither the SEC nor any
other securities commission, securities regulator or similar regulatory
authority has reviewed or passed on the merits of the Securities or on any of
the documents reviewed or executed by the Investor in connection with the sale
of the Securities.
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.50 Purchase
Entirely for Own Account. The Securities are being
acquired for the Investor’s own account, not as nominee or agent, for investment
purposes only and not with a view to the resale or distribution of any part
thereof in violation of the Securities Act, and the Investor has no present
intention of selling, granting any participation in, or otherwise distributing
the same in violation of the Securities Act, without prejudice, however, to the
Investor’s right at all times to sell or otherwise dispose of all or any part of
such Securities in compliance with applicable federal and state securities
laws.
.51 Not a
Broker-Dealer. The
Investor is neither a registered representative under the Financial Industry
Regulatory Authority (“FINRA”), a member of FINRA or associated
or Affiliated with any member of FINRA, nor a broker-dealer registered with the
SEC under the Exchange Act or engaged in a business that would require it to be
so registered, nor is it an Affiliate of a such a broker-dealer or any Person
engaged in a business that would require it to be registered as a broker-dealer.
In the event the Investor is a member of FINRA, or associated or Affiliated with
a member of FINRA, the Investor agrees, if requested by FINRA, to sign a
lock-up, the form of which shall be satisfactory to FINRA with respect to the
Notes, Conversion Shares, Warrants and the Warrant Shares.
.52 Not an
Underwriter. The
Investor is not an underwriter of the Common Stock, nor is it an Affiliate of an
underwriter of the Common Stock.
.53 Investment
Experience. The
Investor acknowledges that the purchase of the Securities is a highly
speculative investment and that it can bear the economic risk and complete loss
of its investment in the Securities and has such knowledge and experience in
financial and/or business matters that it is capable of evaluating the merits
and risks of the investment contemplated hereby.
.54 Disclosure
of Information. The
Investor has had an opportunity to receive, and fully and carefully review, all
information related to the Company and the Securities requested by it and to ask
questions of and receive answers from the Company regarding the Company, its
business and the terms and conditions of the offering of the
Securities. The Investor acknowledges that it has received, and
fully and carefully reviewed and understands all of the Transaction Documents,
including, but not limited to, the Memorandum describing, among other items, the
Company, its business, its risks, the Securities and the offering of the
Securities. Investor acknowledges that it has received, either in
hardcopy or electronically, copies of the SEC Reports, and has fully and
carefully reviewed and understands the SEC Reports. The Investor
understands that its investment in the Securities involves a high degree of
risk. The Investor’s decision to enter into this Agreement has been
made based solely on the independent evaluation of the Investor and its
representatives. The Investor has received such accounting, tax and
legal advice from Persons other than the Company as it has considered necessary
to make an informed investment decision with respect to the acquisition of the
Securities.
.55 Restricted
Securities. The
Investor understands that the sale or re-sale of the Securities has not been and
is not being registered under the Securities Act or any applicable state
securities laws, and the Securities, as applicable, may not be transferred
unless:
.1 they
are sold pursuant to an effective registration statement under the Securities
Act; or
.2 they
are sold pursuant to a valid exemption from the registration requirements of the
Securities Act and, if required by the Company, the Investor shall have
delivered to the Company, at the Investor’s sole cost and expense, an opinion of
counsel that shall be in form, substance and scope customary for opinions of
counsel in comparable transactions to the effect that the Securities to be sold
or transferred may be sold or transferred pursuant to an exemption from the
registration requirements of the Securities Act, which opinion shall be
acceptable to the Company; or
.3 they are sold or transferred to an
“affiliate” (as defined in Rule 144, promulgated under the Securities Act (or a
successor rule (“Rule 144”)) of the Investor who agrees to
sell or otherwise transfer the Securities only in accordance with this Section
4.10 and who is an accredited investor, or
.4 they
are sold pursuant to Rule 144.
The
Investor understands that any sale of the Securities made in reliance of Rule
144 may be made only in accordance with the terms of Rule 144 and other than as
provided in the Transaction Documents, neither the Company nor any other Person
is under any obligation to register the Securities under the Securities Act or
any state securities laws. Notwithstanding the foregoing or anything else
contained herein to the contrary, the Securities may be pledged as collateral in
connection with a bona fide margin account or other lending
arrangement.
.56 Accredited
Investor. The
Investor is an accredited investor as defined in Rule 501(a) of Regulation D, as
amended, under the Securities Act. (“Regulation D”).
.57 No
General Solicitation. The Investor did not
learn of the investment in the Securities as a result of any public advertising
or general solicitation, and is not aware of any public advertisement or general
solicitation in respect of the Company or its securities.
.58 Brokers
and Finders. The
Investor will not have, as a result of the transactions contemplated by the
Transaction Documents, any valid right, interest or claim against or upon the
Company, any Subsidiary or any other Investor for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding entered
into by or on behalf of the Investor.
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.59 Prohibited
Transactions. Other
than with respect to the transactions contemplated herein, since the earlier to
occur of (i) the time that the Investor was first contacted by the Company, or
any other Person regarding an investment in the Company and (ii) the thirtieth
(30th) day prior to the date hereof, neither the Investor nor any Affiliate of
the Investor which (x) had knowledge of the transactions contemplated hereby,
(y) has or shares discretion relating to the Investor’s investments or trading
or information concerning the Investor’s investments, including in respect of
the Securities, or (z) is subject to the Investor’s review or input concerning
such Affiliate’s investments or trading decisions (collectively, “Trading
Affiliates”) has,
directly or indirectly, nor has any Person acting on behalf of, or pursuant to,
any understanding with the Investor or Trading Affiliate effected or agreed to
effect any transactions in the securities of the Company or involving the
Company’s securities (a “Prohibited
Transaction”).
.60 Governmental
Review. The Investor
understands that no United States federal or state agency or any other
government or governmental agency has passed upon or made any recommendation or
endorsement of the Securities or the fairness or suitability of an investment in
the Securities.
.61 Residency. The Investor is a
resident of the jurisdiction set forth in the Investor Questionnaire provided
separately.
.62 Reliance
on Exemptions. The
Investor understands that the Securities are being offered and sold to it in
reliance upon specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying upon
the truth and accuracy of, and the Investor’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
the Investor set forth herein in order to determine the availability of such
exemptions and the eligibility of the Investor to acquire the
Securities. All of the information which the Investor has provided to
the Company is true, correct and complete as of the date of this Agreement, and
if there should be any change in such information prior to the Closing, the
Investor will immediately provide the Company with such
information.
.63 Conflicts. The Investor understands
that Affiliates and/or employees of the Company and/or the Selling Agents, if
any, may, but are not obligated to, purchase Securities in the Offering and any
and all such Securities purchased shall be counted toward the Minimum Amount and
the Maximum Amount.
.64 Selling
Agent Compensation. The Investor understands
that Selling Agents, if any, used by the Company in connection with this
Offering will receive the compensation set forth in the Memorandum for Units
place by such Selling Agents.
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Covenants
of the Company.
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.65 Furnishing
of Information. For
the two year period after the Final Closing Date, the Company covenants to use
its reasonable efforts to (a) file all reports required to be filed by the
Company after the date hereof pursuant to the Exchange Act and (b) make and keep
adequate “current public information” (as such term is described in Rule 144)
available.
.66 Rule 144
Sales. In connection
with any proposed sale of Conversion Shares or Warrant Shares pursuant to Rule
144 (or any successor provision) by the Investor, the Company covenants that it
shall take such reasonable action as the Investor may request (including,
without limitation, promptly obtaining any required legal opinions from Company
counsel necessary to effect the sale of Conversion Shares or Warrant Shares
under Rule 144), all to the extent required from time to time to enable the
Investor to sell Conversion Shares or Warrant Shares without registration under
the Securities Act pursuant to the provisions of Rule 144 under the Securities
Act (or any successor provision).
.67 Filing of
Tax Reports. The
Company shall, and shall cause each of its Subsidiaries to prepare and timely
file (or obtain extensions in respect thereof and file within the applicable
grace period) all tax returns and tax reports required to be filed by each of
them in all required jurisdictions after the date hereof pursuant to applicable
tax laws.
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Representations
and Warranties of the Company.
|
The
Company represents, warrants and covenants to the Investor that:
.68 Organization;
Execution, Delivery and Performance.
.1 The
Company and each Subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it is
incorporated or organized, with full power and authority (corporate and other)
to own, lease, use and operate its properties and to carry on its business as
and where now owned, leased, used, operated and conducted. The
Company is duly qualified as a foreign corporation to do business and is in good
standing in every jurisdiction in which its ownership or use of property or the
nature of the business conducted by it makes such qualification necessary except
where the failure to be so qualified or in good standing would not have a
Material Adverse Effect.
.2 The
Company has no Subsidiaries other than those set forth in the SEC
Reports. Except as set forth in the SEC Reports, the Company owns,
directly or indirectly, all of the capital stock of each
Subsidiary.
.3 (i) The
Company has all requisite corporate power and authority to enter into and
perform this Agreement and the other Transaction Documents and to consummate the
transactions contemplated hereby and thereby and to issue the Securities in
accordance with the terms hereof and thereof; (ii) the execution and delivery of
this Agreement and the other Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby
have been duly authorized by the Company’s Board of Directors and no further
consent or authorization of the Company, its Board of Directors, or its
stockholders, is required except as expressly contemplated by this Agreement;
(iii) each of the Transaction Documents has been duly executed and delivered by
the Company by its authorized representative, and such authorized representative
is a true and official representative with authority to sign each such document
and the other documents or certificates executed in connection herewith and bind
the Company accordingly; and (iv) each of the Transaction Documents constitutes,
and upon execution and delivery thereof by the Company will constitute, a legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
general principals of equity, or to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and
remedies.
.69 Conversion
Shares and Warrants Duly Authorized, Etc. The Conversion Shares
will be duly authorized and reserved for future issuance and, upon conversion of
the Notes in accordance with their terms, will be duly and validly issued, fully
paid and non-assessable, and free from all taxes or Liens with respect to the
issue thereof and shall not be subject to preemptive rights, rights of first
refusal and/or other similar rights of stockholders of the Company and/or any
other Person. The Warrant Shares will be duly authorized and reserved
for future issuance and, upon exercise of the Warrants in accordance with their
terms, will be duly and validly issued, fully paid and non-assessable, and free
from all taxes or Liens with respect to the issue thereof and shall not be
subject to preemptive rights, rights of first refusal and/or other similar
rights of stockholders of the Company and/or any other
Person.
.70 Capitalization. The authorized capital
stock of the Company is as set forth in the SEC Reports. The capital
stock of the Company conforms to the description thereof contained in the SEC
Reports and, except as set forth in the SEC Reports, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of common
stock of or ownership interests in the Company are
outstanding.
11
.71 Financial
Statements. The
consolidated historical financial statements and schedules of the Company and
its consolidated Subsidiaries included in the SEC Reports (the “Company Financial
Statements”) present
fairly the financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of Regulation S-X and have been prepared
in conformity with generally accepted accounting principles in the United States
applied on a consistent basis throughout the periods
involved.
.72 No
Litigation; Governmental Proceedings. No action, suit or
proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries or its or their
property is pending or, to the best knowledge of the Company, threatened that
(i) could reasonably be expected to have a material adverse effect on the
performance of this Subscription Agreement or the other Transaction Documents or
the consummation of any of the transactions contemplated hereby or thereby, or
(ii) could reasonably be expected to have a Material Adverse Effect, except as
set forth in or contemplated by the SEC Reports.
.73 Ownership
of Properties. Each
of the Company and its Subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently
conducted.
.74 No
Defaults. Neither
the Company nor any of its Subsidiaries is in (i) violation or default of any
provision of its charter or bylaws; (ii) default or material violation of the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is subject;
or (iii) default or material violation of any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its Subsidiaries
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or such
Subsidiary or any of its properties, as applicable.
.75 Tax
Returns. The Company
has filed all U.S. federal, state and local tax returns that are required to be
filed or has requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect) and has paid all
taxes required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested in
good faith or as would not have a Material Adverse Effect and except as set
forth in or contemplated in the SEC Reports.
.76 No
Securities Act Registration. Assuming the accuracy of
the Investor’s representations and warranties set forth in this Subscription
Agreement, no registration under the Act of the Securities is required for the
offer and sale of the Securities to the Investor in the manner contemplated
herein and in the Memorandum.
.77 No
Material Changes. Except as set forth in
SEC Reports, since March 31, 2008, there has not been:
.1 Any
Material Adverse Change in the financial condition, operations or business of
the Company from that shown on the Company Financial Statements, or any material
transaction or commitment effected or entered into by the Company outside of the
ordinary course of business;
.2 To
the Company’s Knowledge, any effect, change or circumstance which has had, or
could reasonably be expected to have, a Material Adverse Effect; or
.3 Any
incurrence of any material liability outside of the ordinary course of
business.
.78 No
General Solicitation. The
Company has not, and to the Company’s knowledge no other Person has conducted
any “general solicitation,” as such term is defined in Regulation D promulgated
under the Securities Act, with respect to any of the Securities being offered
hereby.
.79 Books and
Records. The books of account,
ledgers, order books, records and documents of the Company accurately and
completely reflect all material information relating to the businesses of the
Company, the location and collection of its assets, and the nature of all
transactions giving rise to the obligations or accounts receivable of the
Company.
.80 Disclosure. All information relating to or
concerning the Company and its officers, directors, employees, customers or
clients set forth in the Memorandum does not contain an untrue statement of
material fact or omit to state any material fact necessary in order to make the
statements made herein or therein, in light of the circumstances under which
they were made, not misleading.
12
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Transfer
Restrictions.
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.81 Transfer
or Resale. Except as
provided in the Registration Rights Agreement, the resale of the Securities by
the Investor has not been and will not be registered under the Securities Act or
any applicable state securities laws, and that none of the Securities may be
transferred or sold by the Investor unless:
.1 they
are sold pursuant to an effective registration statement under the Securities
Act;
.2 they
are being sold pursuant to a valid exemption from the registration requirements
of the Securities Act and, if required by the Company, the Investor shall have
delivered to the Company, at the Investor’s sole cost and expense, an opinion of
counsel that shall be in form, substance and scope customary for opinions of
counsel in comparable transactions to the effect that the Securities to be sold
or transferred may be sold or transferred pursuant to an exemption from the
registration requirements of the Securities Act, which opinion shall be
acceptable to the Company;
.3 the
Securities are sold or transferred to an “affiliate” (as defined in Rule 144) of
the Investor who agrees to sell or otherwise transfer the Securities only in
accordance with this Section 7.1 and who is an Accredited Investor;
or
.4 the
Securities are sold pursuant to Rule 144.
13
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Conditions
to Closing of the Investor.
|
The
obligation of the Investor to purchase the Units at the Closing is subject to
the fulfillment to the Investor’s satisfaction, on or prior to the Closing Date,
of the following conditions, any of which may be waived by the
Investor:
.82 Representations
and Warranties. The
representations and warranties made by the Company in Section 6 hereof qualified
as to materiality shall be true and correct at all times prior to and on the
Closing Date, except to the extent any such representation or warranty expressly
speaks as of an earlier date, in which case such representation or warranty
shall be true and correct as of such earlier date, and, the representations and
warranties made by the Company in Section 6 hereof not qualified as to
materiality shall be true and correct in all material respects at all times
prior to and on the Closing Date, except to the extent any such representation
or warranty expressly speaks as of an earlier date, in which case such
representation or warranty shall be true and correct in all material respects as
of such earlier date. The Company shall have performed in all
material respects all obligations and covenants herein required to be performed
by it on or prior to the Closing Date.
.83 Approvals. The Company shall have
obtained any and all consents, permits, approvals, registrations and waivers
necessary or appropriate for consummation of the purchase and sale of the
Securities and the consummation of the other transactions contemplated by the
Transaction Documents, all of which shall be in full force and
effect.
.84 Judgments,
Etc. No judgment,
writ, order, injunction, award or decree of or by any court, or judge, justice
or magistrate, including any bankruptcy court or judge, or any order of or by
any governmental authority, shall have been issued, and no action or proceeding
shall have been instituted by any governmental authority, enjoining or
preventing the consummation of the transactions contemplated hereby or in the
other Transaction Documents.
.85 Stop
Orders. No stop
order or suspension of trading shall have been imposed by the SEC or any other
governmental or regulatory body having jurisdiction over the Company or the
market(s) where the Company’s Common Stock is listed or quoted, with respect to
public trading in the Common Stock.
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Conditions
to Closing of the Company.
|
The
obligations of the Company to effect the transactions contemplated by this
Agreement are subject to the fulfillment at or prior to each Closing Date of the
conditions listed below:
.86 Representations
and Warranties. The
representations and warranties made by the Investor in Section 4 shall be true
and correct in all material respects at the time of Closing as if made on and as
of such date.
.87 Corporate
Proceedings. If the
Investor is a corporation or other entity, all corporate and other proceedings
required to be undertaken by the Investor in connection with the transactions
contemplated hereby shall have occurred and all documents and instruments
incident to such proceedings shall be reasonably satisfactory in substance and
form to the Company.
.88 Agreements. The Investor shall have
completed and executed this Agreement, the other Transaction Documents to which
it is a party and shall have completed the Investor Certification, and delivered
the same to the Company
.89 Purchase
Price. The Investor
shall have delivered or caused to be delivered the full purchase price for the
Units subscribed for to the Company.
.90 Minimum
Amount. The Minimum
Amount shall have been raised.
14
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Indemnification.
|
.91 Indemnification
by the Company. The
Company expressly and irrevocably agrees to indemnify and hold harmless the
Investor and its Affiliates and their respective directors, officers, employees
and agents (the “Investor
Indemnitees”) from and
against any and all losses, claims, damages, liabilities and expenses (including
without limitation reasonable attorney fees and disbursements and other expenses
as and when incurred in connection with investigating, preparing or defending
any action, claim or proceeding, pending or threatened and the costs of
enforcement thereof) (collectively, “Losses”) to which such Investor Indemnitees
may become subject, insofar as such Losses arise out of or are based upon any
breach of representation, warranty, covenant or agreement made by the Company
under the Transaction Documents and will reimburse any such Investor Indemnitees
for all such amounts as they are incurred by such Investor
Indemnitees.
.92 Indemnification
by the Investor. The
Investor agrees to indemnify and hold harmless the Company, the Selling Agents,
if any, and their respective Affiliates, directors, officers, employees and
agents (collectively, the “Company
Indemnitees”) from and
against any and all Losses to which such Company Indemnitees may become subject,
insofar as such Losses arise out of or are based upon (a) any untrue statement
or alleged untrue statement of a material fact made by the Investor and
contained in the Transaction Documents or in the Investor Certification, or (b)
any breach of representation, warranty, covenant or agreement made by or to be
performed on the part of the Investor under the Transaction Documents or in the
Investor Certification, and will reimburse any such Company Indemnitees for all
such amounts as they are incurred by such Company Indemnitees. The
Selling Agents, if any, are third-party beneficiaries of this Section
10.
.93 Notices. Promptly after receipt by
any Investor Indemnitees or Company Indemnitees, as applicable, of notice of any
demand, claim or circumstances which would or might give rise to a claim or the
commencement of any action, proceeding or investigation in respect of which
indemnity may be sought pursuant to this Section 10, such Investor Indemnitees
or Company Indemnitees, as applicable, shall promptly notify the other party in
writing and such other party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Investor Indemnitees or
Company Indemnitees, as applicable, and shall assume the payment of all fees and
expenses; provided, however, that the failure of any Investor Indemnitees or
Company Indemnitees, as applicable, so to notify the other party shall not
relieve the other party of its obligations hereunder except to the extent that
the other party is materially prejudiced by such failure to
notify. In any such proceeding, any Investor Indemnitees or Company
Indemnitees, as applicable, shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such Investor
Indemnitees or Company Indemnitees, as applicable, unless:
.1 the
Investor Indemnitees and Company Indemnitees shall have mutually agreed to the
retention of such counsel; or
.2 in
the reasonable judgment of counsel to such Investor Indemnitees or Company
Indemnitees, as applicable, representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them.
.94 Settlements. Neither the Investor
Indemnitees or Company Indemnitees, as applicable, shall be liable for any
settlement of any proceeding effected without its written consent, which consent
shall not be unreasonably withheld, but if settled with such consent, or if
there be a final judgment for the plaintiff, the other party shall indemnify and
hold harmless such Investor Indemnitees or Company Indemnitees, as applicable,
from and against any loss or liability (to the extent stated above) by reason of
such settlement or judgment. Without the prior written consent of the
Investor Indemnitees or Company Indemnitees, as applicable, which consent shall
not be unreasonably withheld, the other party shall not effect any settlement of
any pending or threatened proceeding in respect of which any Investor
Indemnitees or Company Indemnitees, as applicable, is or could have been a party
and indemnity could have been sought hereunder by such Investor Indemnitees or
Company Indemnitees, as applicable, unless such settlement includes an
unconditional release of such Investor Indemnitees or Company Indemnitees, as
applicable, from all liability arising out of such
proceeding.
15
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Miscellaneous.
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.95 Compensation
of Placement Agent, Brokers, etc. The Investor
acknowledges that it is fully aware that the Company may use Selling Agents to
place Units and may pay to such Selling Agents at each Closing compensation
consisting of (i) cash commissions of up to ten (10%) percent of the gross
proceeds from the sale of Units placed by such Selling Agents and (ii) warrants
(the “Agent
Warrants”) to purchase
that number of shares of Common Stock as shall equal up to fifteen (15%) percent
of the Conversion Shares underlying the Units placed by such Selling
Agents.
.96 Blue Sky
Qualification. The
purchase of Securities under this Subscription Agreement is expressly
conditioned upon the exemption from qualification of the offer and sale of the
Securities from applicable Federal and state securities laws. The
Company will not be required to qualify this transaction under the securities
laws of any jurisdiction and, should qualification be necessary, the Company
will be released from any and all obligations to maintain its offer, and may
rescind any sale contracted, in the jurisdiction.
.97 Notices. All notices, requests,
demands and other communications provided in connection with this Agreement
shall be in writing and shall be deemed to have been duly given at the time when
hand delivered, delivered by express courier, or sent by facsimile (with receipt
confirmed by the sender’s transmitting device) in accordance with the contact
information provided below or such other contact information as the parties may
have duly provided by notice.
The
Company:
000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile: (000)
000-0000
Attention:
J. Xxxxx Xxxxxxxxx
Chief
Executive Officer
The
Investor:
As per
the contact information provided on the signature page hereof.
.98 Survival
of Representations and Warranties. Each party hereto
covenants and agrees that the representations and warranties of such party
contained in this Agreement shall survive the Closing.
.99 Entire
Agreement. This Agreement and
the other Transaction Documents contain the entire agreement between the Company
and the Investor in respect of the subject matter contained herein and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter contained
herein.
.100 Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and assigns. Neither the Company nor the Investor shall assign
this Agreement or any rights or obligations hereunder without the prior written
consent of the other.
.101 Publicity. The Company shall be entitled,
without the prior approval of the Investor, to make any press release or SEC or
other regulatory filings with respect to such transactions as is expressly
required by applicable law and regulations.
.102 Binding
Effect; Benefits. This Agreement and all
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns; nothing in
this Agreement, expressed or implied, is intended to confer on any persons other
than the parties hereto or their respective successors and permitted assigns,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
.103 Amendment;
Waivers. All modifications,
amendments or waivers to this Agreement shall require the written consent of
both the Company and a majority in interest of the Investors (based on the
number of Units purchased hereunder).
16
.104 Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be
governed by, and construed solely and exclusively in accordance with, the
internal laws of the State of New York without regard to the choice of law
principles thereof. Each of the parties hereto irrevocably submits to
the sole and exclusive jurisdiction of the courts of the State of New York
located in New York County and the United States District Court for the Southern
District of New York for the purpose of any suit, action, proceeding or judgment
relating to or arising out of this Agreement and the transactions contemplated
hereby (a “Proceeding”). Each of the parties hereto irrevocably
consents to the sole and exclusive jurisdiction of any such court in any such
Proceeding and to the laying of venue in such court. Each party
hereto expressly and irrevocably waives any objection to the laying of venue of
any such Proceeding brought in such courts and irrevocably waives any claim that
any such Proceeding brought in any such court has been brought in an
inconvenient forum. The successful party in any Proceeding shall be
entitled to its legal fees and expenses from the losing party. EACH
OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY
LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN
CONSULTED SPECIFICALLY AS TO THIS WAIVER.
.105 Confidentiality. The Investor acknowledges
and agrees that any information or data the Investor has acquired from or about
the Company, not otherwise properly in the public domain, was received in
confidence (the “Confidential
Information”). Any distribution of
the Confidential Information to any person other than the Investor named above,
in whole or in part, or the reproduction of the Confidential Information, or the
divulgence of any of its contents (other than to the Investor’s tax and
financial advisers, attorneys and accountants, who will likewise be required to
maintain the confidentiality of the Confidential Information) is unauthorized,
except that any Investor (and each employee, representative, or other agent of
the Investor) may disclose to any and all persons, without limitations of any
kind (except as provided in the next sentence) the tax treatment and tax
structure of the transaction and all materials of any kind (including opinions
or other tax analyses) that are provided to the Investor relating to such tax
treatment and tax structure. Any such disclosure of the tax
treatment, tax structure and other tax-related materials shall not be made for
the purpose of offering to sell the securities offered hereby or soliciting an
offer to purchase any such securities. Except as provided above with
respect to tax matters, the above named Investor, agrees not to divulge,
communicate or disclose, except as may be required by law or for the performance
of this Subscription Agreement, or use to the detriment of the Company or for
the benefit of any other person or persons, or misuse in any way, any
Confidential Information of the Company, including any scientific, technical,
trade or business secrets of the Company and any scientific, technical, trade or
business materials that are treated by the Company as confidential or
proprietary, including, but not limited to, ideas, discoveries, inventions,
developments and improvements belonging to the Company and Confidential
Information obtained by or given to the Company about or belonging to third
parties.
.106 Further
Assurances. Each
party hereto shall do and perform or cause to be done and performed all such
further acts and shall execute and deliver all such other agreements,
certificates, instruments and documents as any other party hereto reasonably may
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
17
.107 Counterparts.
This agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original,
and all of which shall constitute one and the same document. In the
event that any signature (including a financing signature page) is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, 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 or “pdf” signature page were an original
thereof.
.108 Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof but shall
be interpreted as if it were written so as to be enforceable to the maximum
extent permitted by applicable law, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. To the extent permitted by applicable law,
the parties hereby waive any provision of law which renders any provision hereof
prohibited or unenforceable in any respect.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
18
IN
WITNESS WHEREOF, the undersigned Investor and the Company have caused this
Subscription Agreement to be duly executed as of the date first above
written.
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By:
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Name:
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Title:
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INVESTOR:
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The
Investor executing the Investor Counterpart Signature Page attached hereto
and delivering the same to the Company or its agents shall be deemed to
have executed this Agreement and agreed to the terms hereof.
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19
Investor
Counterpart Signature Page
The
undersigned, desiring to:
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(a)
|
enter
into this Subscription Agreement dated as of ___________, 200__ (the
“Agreement”), between the undersigned and Anpath Group, Inc., a Delaware
corporation (the “Company”); and
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(b) purchase
the securities of the Company as set forth below,
hereby
agrees to purchase such securities from the Company as of the Closing and
further agrees to join the Agreement as a party thereto, with all the rights and
privileges appertaining thereto, and to be bound in all respects by the terms
and conditions thereof. The undersigned specifically acknowledges
having read the representations in the section of the Agreement entitled
“Representations, Warranties and Acknowledgments of the Investor,” and hereby
represent that the statements contained therein are complete and accurate with
respect to the undersigned as an Investor. The undersigned further hereby agrees
that execution by the undersigned of this Investor Counterpart Signature Page
shall constitute an agreement to be bound by the terms and conditions of each of
the Agreement and the Registration Rights Agreement, with the same effect as if
such separate, but related agreement, was separately signed.
Investor
herby elects to purchase a total of __________ Units at a price of $10,000 per
Unit. (Each Unit consisting of a Note and a Warrant to purchase 20,000 Warrant
Shares)
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IF
AN ENTITY:
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IF
AN INDIVIDUAL:
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Name
of Entity:
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Print
Name:
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(Print)
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||||
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Signature:
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||||
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By:
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||||
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(Signature)
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Co-Investor
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Print
Name:
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Print
Name:
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Signature:
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Date:
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Date:
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20
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ANNEX
A
INVESTOR
QUESTIONNAIRE
INDIVIDUAL
INVESTORS
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||||||||
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Investor
Name:
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||||||||
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Co-Investor
Name:
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||||||||
| Individual Executing Profile or Trustee (If Applicable): | ||||||||
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Marital
Status:
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||||||||
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SSN
#:
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Joint
Party SSN #:
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|||||||
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Date
of Birth:
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Joint
Party Date of Birth:
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Primary
Residence:
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Street
Address:
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City,
State & Zip Code:
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Home
Phone:
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Home
Fax:
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Email
address:
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Business
Address:
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||||||||
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Business
Phone:
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Business
Fax:
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|||||||
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Business
Email Address:
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||||||||
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ENTITY
INVESTORS
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||||||||
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Entity
Investor Name:
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||||||||
| Individual Executing Questionnaire: | ||||||||
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Federal
Tax ID No.:
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Business
Address:
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||||||||
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Business
Street Address:
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||||||||
| Business City, State & Zip Code: | ||||||||
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Contact
Person:
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||||||||
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Business
Phone:
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Business
Fax:
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Business
Email Address:
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SECURITY
DELIVERY INSTRUCTIONS (Check One):
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Please
deliver to the Home Address listed above
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Please
deliver to the Business Address listed above
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Please
deliver my securities to the following address:
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Annex
A
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ANNEX
B
CERTIFICATE
FOR INDIVIDUAL INVESTORS (Including Grantors of Revocable
Trusts)
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If
the investor is an individual, including married couples and XXX accounts
of individual investors, pleased complete, date and sign this Certificate.
If the investment is to be held jointly, each investor must execute and
deliver the Subscription Agreement and initial their Investor Status as
requested below and execute this Certificate.
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Individual
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Joint
Tenants (both Joint Tenants must initial their Investor Status and sign
this Certificate)
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XXX
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Tenants
in Common (both tenants-in-common must initial their Investor Status and
sign this Certificate)
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Tenants in the Entirety
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Community
Property (all holders must initial their Investor Status and sign this
Certificate)
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Grantor
of a Revocable Trust (identify each grantor and indicate under what
circumstances the trust is revocable by the grantor. If you
check this box, please note all Trustees must complete the Investor Status
Section below and sign this Certificate).
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Names
of Grantors:
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|
Check if any Grantor is deceased, disabled or legally
incompetent.
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INVESTOR
STATUS (Including Grantors of Revocable Trusts)
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I
certify that I have a net worth (including home, furnishings and
automobiles) in excess of $1 million either individually or through
aggregating my individual holdings and those in which I have a joint,
community property or other similar shared ownership interest with my
spouse.
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Initial
if Applicable
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|
I
certify that I have had an annual gross income for the past two years of
at least $200,000 (or $300,000 jointly with my spouse) and expect my
income (or joint income, as appropriate) to reach the same level in the
current year.
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Initial
if Applicable
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I
certify that I am a director or executive officer of Anpath Group,
Inc.
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Initial
if Applicable
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|
The
undersigned certifies that the representations and responses above are
true and accurate:
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Investor
Name (Print):
|
Co-
Investor Name:
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Signature:
|
Co-
Investor Signature:
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Date:
|
Date:
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Annex
B
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ANNEX
C
ENTITY
INVESTORS CERTIFICATE
(CORPORATIONS,
PARTNERSHIPS, LIMITED LIABILITY COMPANIES,
IRREVOCABLE
TRUSTS, AND FOUNDATIONS)
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|
If
the Investor is a corporation, partnership, limited liability company,
irrevocable trust, pension plan, foundation or other entity, an authorized
officer, partner, or trustee must provide the requested information below,
initial the Investor Status and sign this Certificate.
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Type
of Entity (check one):
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|
Limited Partnership
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General Partnership
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Limited Liability Company
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Corporation
|
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Irrevocable Trust:
|
Other form of organization:
|
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|
Grantors
of Revocable Trust: Please complete Annex B.
|
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Date
of Formation:
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|
NOTE:
PLEASE PROVIDE A COPY OF THE ORGANIZATIONAL DOCUMENTATION. (i.e., Articles
of Incorporation, Partnership Agreement, Operating Agreement, Trust
Agreement, etc)
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In
order for the Company to offer and sell the Shares in conformance with
state and federal securities laws, the following information must be
obtained regarding your investor status. Please initial each
category applicable to you as an investor in the
Company.
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A
bank as defined in Section 3(a)(2) of the Securities Act, or any savings
and loan association or other institution as defined in Section 3(a)(5)(A)
of the Securities Act whether acting in its individual or fiduciary
capacity;
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|
Initial
if Applicable
|
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|
A
broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934;
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|
Initial
if Applicable
|
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|
An
insurance company as defined in Section 2(13) of the Securities
Act;
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|
Initial
if Applicable
|
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|
An
investment company registered under the Investment Company Act of 1940 or
a business development company as defined in Section 2(a)(48)
of that Act;
|
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|
Initial
if Applicable
|
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|
A
Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958;
|
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|
Initial
if Applicable
|
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|
A
plan established and maintained by a state, its political subdivisions, or
any agency or instrumentality of a state or its political subdivisions,
for the benefit of its employees, if such plan has total assets in excess
of $5,000, 000;
|
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|
Initial
if Applicable
|
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|
An
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such Act, which is either a
bank, savings and loan association, insurance company, or registered
investment advisor, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors;
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|
Initial
if Applicable
|
|||||
|
A
private business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940;
|
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|
Initial
if Applicable
|
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|
Any
partnership or corporation or any organization described in Section
501(c)(3) of the Internal Revenue Code or similar business trust, not
formed for the specific purpose of acquiring the Shares and Warrants, with
total assets in excess of $5,000,000;
|
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|
Initial
if Applicable
|
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|
A
trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the Shares and Warrants, whose purchase is
directed by a sophisticated person as described in
Rule 506(b)(2)(ii) of the Securities Act; or
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|
Initial
if Applicable
|
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|
An
entity in which all of the equity owners qualify under any of the above
subparagraphs.*
|
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|
Initial
if Applicable
|
*If
the undersigned belongs to this investor category only, list the equity
owners of the undersigned, and have each equity owner complete and deliver
Annex A and Annex
B hereof:
|
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|
The
undersigned certifies that the representations and responses above are
true and accurate and that the undersigned has the authority to execute
and deliver the Subscription Agreement and this Certificate on behalf of
the Investor and to take other actions with respect
thereto.
|
|||||
|
Entity
Investor Name:
|
|||||
|
By
(Signature):
|
|||||
|
Print
Name:
|
|||||
|
Title:
|
|||||
Annex
C
