SUBSCRIPTION AGREEMENT FOR THE PURCHASE OF SHARES
SUBSCRIPTION
AGREEMENT FOR THE PURCHASE OF SHARES
BioPower Operations
Corporation, a Nevada corporation (the “Company”), is offering (this
“Offering”) for sale to
“accredited investors”
as the term is defined under Regulation D promulgated under the Securities Act
of 1933, as amended (the “Act”), Shares for a purchase
price of $0.50 per Share, of the Company’s common stock, par value $0.0001 per
share (“Common
Stock”).
Subscription
Procedures
(a) The
undersigned hereby subscribes to purchase ________________ shares of Common
Stock and agrees to pay an aggregate of $______________ as the subscription
amount for the securities being purchased hereunder (the “Subscription
Amount”).
(b) To
subscribe, the undersigned must:
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(i)
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complete
and sign this Subscription Agreement;
and
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(ii)
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complete
and sign the accompanying Confidential Prospective Purchaser Questionnare
(Subscription Agreement, together with the Confidential Prospective
Purchaser Questionnare collectively referred to as the “Subscription
Documents”);
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(iii)
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return
the completed and signed Subscription Documents on behalf of the Company
at the following address:
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BioPower
Operations Corporation
0000
Xxxxx Xxxx, Xxxxx 000
Xxxxxxx
Xxxxx, XX 00000
Attn:
Xxxxxx Xxxx
(iv) Deliver
a check payable to “BioPower Operations Corporation” for an amount equal to the
aggregate amount of Common Stock subscribed for in this offering and send to
0000 Xxxxx Xx., Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx 00000. The undersigned may
wire the Subscription Amount to the Company upon request to the
Company.
(c) The
Offering is scheduled to terminate on __________, 2011, 5:00 p.m., New York
time, unless extended by the Company for an additional [90] days, in the sole
discretion of the Company (the “Offering
Period”).
(d) The
Company will hold a closing on and issue the Common Stock upon the receipt and
acceptance of the Subscription Documents and the Subcription Amount (each a
“Closing”). The date of
each such Closing is referred to herein as the Closing Date.
(e) All
subscription proceeds will be deposited into the Company’s bank account as
provided herein. Upon each Closing, the funds, subject to the payment
of the expenses and fees incurred in connection with this Offering, will be
immediately available to the Company. In the event that an investor’s
subscription is rejected by the Company, or this Offering is terminated for any
reason without a closing, subscription proceeds will be promptly refunded
without interest thereon or deduction therefrom.
Prospective
Investors should retain their own professional advisors to review and evaluate
the economic, tax, and other consequences of an investment in the
Company.
THE
SECURITIES OFFERED HEREBY, HAVE NOT BEEN FILED OR REGISTERED WITH OR APPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”), NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THE OFFERING MATERIALS. NO
STATE SECURITIES LAW ADMINISTRATOR HAS PASSED ON OR ENDORSED THE MERITS OF THIS
OFFERING OR THE ACCURACY OR THE ADEQUACY OF THE OFFERING MATERIALS. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
IT
IS INTENDED THAT THE SECURITIES OFFERED HEREBY WILL BE MADE AVAILABLE TO
ACCREDITED INVESTORS, AS DEFINED IN REGULATION D AND RULE 501 PROMULGATED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”) AND UP TO THIRTY-FIVE
NON-ACCREDITED INVESTORS. THE SECURITIES OFFERED HEREBY ARE BEING
OFFERED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933
ACT AND APPLICABLE STATE SECURITIES LAWS FOR NONPUBLIC OFFERINGS. SUCH
EXEMPTIONS LIMIT THE NUMBER AND TYPES OF INVESTORS TO WHICH THE OFFERING WILL BE
MADE AND RESTRICT SUBSEQUENT TRANSFERS OF THE INTERESTS.
THE
SECURITIES OFFERED HEREBY SHOULD BE CONSIDERED ONLY BY PERSONS WHO CAN AFFORD TO
SUSTAIN A LOSS OF THEIR ENTIRE INVESTMENT. INVESTORS WILL BE REQUIRED TO
REPRESENT THAT THEY ARE FAMILIAR WITH AND UNDERSTAND THE TERMS OF THIS
OFFERING.
NO
SECURITIES MAY BE RESOLD OR OTHERWISE DISPOSED OF BY AN INVESTOR UNLESS, IN THE
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, REGISTRATION UNDER THE
APPLICABLE FEDERAL OR STATE SECURITIES LAWS IS NOT REQUIRED OR COMPLIANCE IS
MADE WITH SUCH REGISTRATION REQUIREMENTS.
THE
OFFEREE, BY ACCEPTING DELIVERY OF THE OFFERING MATERIALS, AGREES TO RETURN THE
OFFERING MATERIALS AND ALL ACCOMPANYING OR RELATED DOCUMENTS TO THE COMPANY UPON
REQUEST IF THE OFFEREE DOES NOT AGREE TO PURCHASE ANY OF THE SECURITIES OFFERED
HEREBY.
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ANY
OFFERING MATERIALS SUBMITTED IN CONNECTION WITH THE PRIVATE PLACEMENT OF THE
SECURITIES DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH AN OFFER OR SOLICITATION IS NOT
AUTHORIZED. ANY REPRODUCTION OR DISTRIBUTION OF ANY OFFERING
MATERIALS IN WHOLE OR IN PART, OR THE DIVULGENCE OF ANY OF THEIR CONTENTS,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, IS PROHIBITED. ANY PERSON
ACTING CONTRARY TO THE FOREGOING RESTRICTIONS MAY PLACE HIM/HERSELF AND THE
COMPANY IN VIOLATION OF FEDERAL OR STATE SECURITIES LAWS.
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NASAA
UNIFORM LEGEND
IN
MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS
INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE 1933 ACT, AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME.
The
undersigned acknowledges that the Common Stock offered hereby will not be
registered under the 1933 Act, or the securities laws of any State, that absent
an exemption from registration contained in those laws, the issuance and sale of
such Common Stock, as applicable, would require registration, and that the
Company's reliance upon such exemption is based upon the undersigned's
representations, warranties, and agreements contained in the Offering Materials
(as defined below).
1.
The undersigned represents, warrants, and agrees as
follows:
(a) The
undersigned agrees that this Subscription Agreement is and shall be
irrevocable.
(b)
The undersigned has carefully read this Subscription Agreement, the
Confidential Term Sheet and the Confidential Prospective Purchaser Questionnaire
(collectively the “Offering
Materials”), all of which the undersigned acknowledges have been provided
to the undersigned. The undersigned has been given the opportunity to
ask questions of, and receive answers from the Company concerning the terms and
conditions of this Offering and the Offering Materials and to obtain such
additional written information, to the extent the Company possesses such
information or can acquire it without unreasonable effort or expense, necessary
to verify the accuracy of the same as the undersigned desires in order to
evaluate the investment. The undersigned further acknowledges that
the undersigned fully understands the Offering Materials, and the undersigned
has had the opportunity to discuss any questions regarding any of the Offering
Materials with the undersigned’s counsel or other
advisor. Notwithstanding the foregoing, the only information upon
which the undersigned has relied is that set forth in the Offering Materials and
the undersigned’s own independent investigation. The undersigned
acknowledges that the undersigned has received no representations or warranties
from the Company or its employees, director, or agents in making this investment
decision other than as set forth in the Offering Materials.
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(c) The
undersigned is aware that the purchase of the Common Stock is a speculative
investment involving a high degree of risk and that there is no guarantee that
the undersigned will realize any gain from this investment, and that the
undersigned could lose the total amount of the undersigned's
investment.
(d) The
undersigned understands that no federal or state agency has made any finding or
determination regarding the fairness of this Offering of the Common Stock for
investment, or any recommendation or endorsement of this Offering of the Common
Stock.
(e) The
Undersigned is an “accredited investor” as that term is defined in Rule 501(a)
of Regulation D under the 1933 Act. The Undersigned has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of the purchase of the Common Stock. The
Undersigned is not registered as a broker or dealer under Section 15(a) of the
1934 Act, affiliated with any broker or dealer registered under Section 15(a) of
the Securities Exchange Act of 1934, as amended, or a member of the Financial
Industry Regulatory Authority.
(f) Each
of this Agreement and the Offering Materials have been duly and validly
authorized, executed and delivered on behalf of the Undersigned and is a valid
and binding agreement of the Undersigned enforceable against the Undersigned in
accordance with their terms, subject as to enforceability to general principles
of equity and to applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting generally, the
enforcement of applicable creditors’ rights and remedies. The
Undersigned has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and the Offering Materials and each
other agreement entered into by the parties hereto in connection with the
transactions contemplated by this Agreement.
(g) The
execution, delivery and performance of this Agreement and the Offering Materials
by the Undersigned and the consummation by the Undersigned of the transactions
contemplated hereby and thereby will not (i) result in a violation of the
certificate of incorporation, by-laws or other documents of organization of the
Undersigned, (ii) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give others
any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Undersigned is bound, or (iii)
result in a violation of any law, rule, regulation or decree applicable to the
Undersigned.
(h) The
Undersigned understands that there is a limited public trading market for the
Common Stock, and the Common Stock must be held indefinitely unless and until
such Common Stock is registered under the 1933 Act or an exemption from
registration is available. The Undersigned has been advised or is
aware of the provisions of Rule 144 promulgated under the 1933 Act.
(i)
The Undersigned understands that the Common Stock is being offered and sold in
reliance on a transactional exemption from the registration requirements of
Federal and state securities laws and that the Company is relying upon the truth
and accuracy of the representations, warranties, agreements, acknowledgments and
understandings of the Undersigned set forth herein in order to determine the
applicability of such exemptions and the suitability of the Undersigned to
acquire the Common Stock.
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(j) The
undersigned is purchasing the Common Stock for the undersigned's own account,
with the intention of holding the Common Stock, with no present intention of
dividing or allowing others to participate in this investment or of reselling or
otherwise participating, directly or indirectly, in a distribution of the Common
Stock, and shall not make any sale, transfer, or pledge thereof without
registration under the Act and any applicable securities laws of any state or
unless an exemption from registration is available under those
laws.
(k) The
undersigned represents that the undersigned, if an individual, has adequate
means of providing for his or her current needs and personal and family
contingencies and has no need for liquidity in this investment in the Common
Stock. The undersigned has no reason to anticipate any material
change in his or her personal financial condition for the foreseeable
future.
(l) The
undersigned is financially able to bear the economic risk of this investment,
including the ability to hold the Common Stock indefinitely or to afford a
complete loss of the undersigned’s investment in the Common Stock.
(m) The
undersigned represents that the undersigned's overall commitment to this
investment is not disproportionate to the undersigned's net worth, and the
undersigned's investment in the Common Stock will not cause such overall
commitment to become excessive. The undersigned understands that the
statutory basis on which the Common Stock is being sold to the undersigned and
others would not be available if the undersigned's present intention were to
hold the Common Stock for a fixed period or until the occurrence of a certain
event. The undersigned realizes that in the view of the Commission, a
purchase now with a present intent to resell by reason of a foreseeable specific
contingency or any anticipated change in the market value, or in the condition
of the Company, or that of the industry in which the business of the Company is
engaged or in connection with a contemplated liquidation, or settlement of any
loan obtained by the undersigned for the acquisition of the Common Stock, and
for which such Common Stock may be pledged as security or as donations to
religious or charitable institutions for the purpose of securing a deduction on
an income tax return, would, in fact, represent a purchase with an intent
inconsistent with the undersigned's representations to the Company and the
Commission would then regard such sale as a sale for which the exemption from
registration is not available. The undersigned will not pledge,
transfer, or assign this Subscription Agreement.
(m) The
undersigned represents that the funds provided for this investment are either
separate property of the undersigned, community property over which the
undersigned has the right of control, or are otherwise funds as to which the
undersigned has the sole right of management.
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(n) FOR PARTNERSHIPS, CORPORATIONS,
TRUSTS, OR OTHER ENTITIES ONLY: If the undersigned is a
partnership, corporation, trust, or other entity, (i) the undersigned has
enclosed with this Subscription Agreement appropriate evidence of the authority
of the individual executing this Subscription Agreement to act on its behalf
(e.g., if a trust, a certified copy of the trust agreement; if a corporation, a
certified corporate resolution authorizing the signature and a certified copy of
the articles of incorporation; or if a partnership, a certified copy of the
partnership agreement), (ii) the undersigned represents and warrants that it was
not organized or reorganized for the specific purpose of acquiring the Common
Stock, (iii) the undersigned has the full power and authority to execute this
Subscription Agreement on behalf of such entity and to make the representations
and warranties made herein on its behalf, and (iv) this investment in the
Company has been affirmatively authorized, if required, by the governing board
of such entity and is not prohibited by the governing documents of the
entity.
(o) The
address shown under the undersigned's signature at the end of this Subscription
Agreement is the undersigned's principal residence if he or she is an
individual, or its principal business address if a corporation or other
entity.
(p) The
undersigned has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Common Stock.
(q) The
undersigned acknowledges that the certificates for the securities comprising the
Common Stock which the undersigned will receive will contain a legend
substantially as follows:
“THE
SECURITIES WHICH ARE REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH
RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR THE COMPANY RECEIVES AN
OPINION OF COUNSEL FOR THE COMPANY THAT AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT IS AVAILABLE.”
The undersigned further acknowledges
that (i) if the Company’s Common Stock becomes publicly traded, any necessary
stop transfer orders will be placed upon the Company’s Common Stock, as
applicable, in accordance with the Act, and (ii) the Company is under no
obligation to aid the undersigned in obtaining any exemption from the
registration requirements.
2. The
undersigned expressly acknowledges and agrees that the Company is relying upon
the undersigned's representations contained in the Offering
Materials.
3.
The undersigned subscriber acknowledges that the undersigned understands the
meaning and legal consequences of the representations and warranties which are
contained herein and hereby agrees to indemnify, save and hold harmless the
Company and its officers, directors and counsel, from and against any and all
claims or actions arising out of a breach of any representation, warranty or
acknowledgment of the undersigned contained in any of the Offering
Materials. Such indemnification shall be deemed to include not only
the specific liabilities or obligations with respect to which such indemnity is
provided, but also all reasonable costs, expenses, counsel fees and expenses of
settlement relating thereto, whether or not any such liability or obligation
shall have been reduced to judgment. In addition, the undersigned's
representations, warranties, and indemnification contained herein shall survive
the undersigned's purchase of the Common Stock hereunder. The
undersigned specifically acknowledges that he has reviewed the risks set forth
in the Offering Materials, as well as the financial statements included
therein.
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4. The
Company represents that it has been duly and validly incorporated and is validly
existing and in good standing as a corporation under the laws of the State of
Nevada. The Company represents that it has all requisite power and authority,
and all necessary authorizations, approvals and orders required as of the date
hereof to own its properties and conduct its business and to enter into this
Subscription Agreement and the other Offering Materials and to be bound by the
provisions and conditions hereof or therein. The Company further
represents that the securities offered hereby are being offered pursuant to an
exemption from the registration requirements of the 1933 Act and applicable
state securities laws for nonpublic offerings.
5. The
undersigned agrees and acknowledges that the Company has the right to utilize
the services of a placement agent and if utilized, may receive a cash
commission, at a rate that is compatible with industry standards, from the
Common Stock sold by such placement agent.
6. The
undersigned does not at this time have rights to have the shares of Company’s
Common Stock issuable under the Offering Materials registered with the
Securities and Exchange Commission.
7. Except
as otherwise specifically provided for hereunder, no party shall be deemed to
have waived any of his, her, or its rights hereunder or under any other
agreement, instrument, or papers signed by any of them with respect to the
subject matter hereof unless such waiver is in writing and signed by the party
waiving said right. Except as otherwise specifically provided for
hereunder, no delay or omission by any party in exercising any right with
respect to the subject matter hereof shall operate as a waiver of such right or
of any such other right. A waiver on any one occasion with respect to
the subject matter hereof shall not be construed as a bar to, or waiver of, any
right or remedy on any future occasion. All rights and remedies with
respect to the subject matter hereof, whether evidenced hereby or by any other
agreement, instrument, or paper, will be cumulative, and may be exercised
separately or concurrently.
8. The
parties have not made any representations or warranties with respect to the
subject matter hereof not set forth herein, and this Subscription Agreement,
together with any instruments executed simultaneously herewith, constitutes the
entire agreement between them with respect to the subject matter
hereof. All understandings and agreements heretofore existing between
the parties with respect to the subject matter hereof are merged in this
Subscription Agreement and any such instrument, which alone fully and completely
express their agreement.
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9. This
Subscription Agreement may not be changed, modified, extended, terminated, or
discharged orally, but only by an agreement in writing, which is signed by all
of the parties to this Subscription Agreement.
10. The
parties agree to execute any and all such other and further instruments and
documents, and to take any and all such further actions reasonably required to
effectuate this Subscription Agreement and the intent and purposes
hereof.
11. If
any provision or any portion of any provision of this Subscription Agreement or
the application of any such provision or any portion thereof to any person or
circumstance, shall be held invalid or unenforceable, the remaining portion of
such provision and the remaining portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby.
12. This
Subscription Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada and the undersigned hereby consents to the
jurisdiction of the courts of the State of New York and/or the Shared States
District Court for the Southern District of New York.
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ALL
SUBSCRIBERS MUST COMPLETE A COPY OF THIS PAGE
__________________________
(Print
Name of Subscriber)
IN WITNESS WHEREOF, the
undersigned has executed this Subscription Agreement on this ____ day of
________, 2011.
Common
Stock Subscription Amount $______
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1.
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Individual
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2.
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Joint
Tenants with Right of Survivorship
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3.
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Community
Property
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4.
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Tenants
in Common
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5.
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Corporation/Partnership
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6.
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XXX
of________________
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7.
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Trust
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Date
Opened ___________
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8.
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As
A Custodian For________________
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Under
the Uniform Transfer to Minors Act of the
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State
of ___________
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9.
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Married
with Separate
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Property
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10.
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Xxxxx
of ____________
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EXECUTION
BY SUBSCRIBER WHO IS A NATURAL PERSON
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Exact
Name in Which Title is to be Held
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Signature
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Name
(Please Print)
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Title
of Person Executing Agreement
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Address: Number
and Street
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City
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State
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Zip
Code
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Social
Security
Number
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Accepted
this ___ day of _______, 2011, on behalf of
_______________________
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BIOPOWER
OPERATIONS CORPORATION
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By:
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Name:
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Title:
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EXECUTION
BY SUBSCRIBER WHICH IS A CORPORATION,
PARTNER,
TRUST, ETC.
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Exact
Name in Which Title is to be Held
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Signature)
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Name
(Please Print)
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Title
of Person Executing Agreement
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Address: Number
and Street
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City
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State
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Zip
Code
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Tax
Identification
Number
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Accepted
this ___ day of _______, 2011, on behalf of _______________
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BIOPOWER
OPERATIONS CORPORATION
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By:
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Name:
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Title:
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